UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT … · 12.01.2017 · UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN JAMES BLEDSOE, PAUL CHOUFFET, JAY MARTIN,

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

JAMES BLEDSOE, PAUL

CHOUFFET, JAY MARTIN, and

MARTIN RIVAS, on behalf of

themselves and all others similarly

situated,

Plaintiffs,

v.

FCA US LLC, a Delaware corporation,

and CUMMINS INC., an Indiana

corporation,

Defendants.

Case No.:

Hon.

JURY TRIAL DEMANDED

CLASS ACTION COMPLAINT

2:16-cv-14024-TGB-RSW Doc # 1 Filed 11/14/16 Pg 1 of 710 Pg ID 1

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TABLE OF CONTENTS

Page

INTRODUCTION ......................................................................................... 1 I.

A. Jurisdiction and Venue ........................................................................ 8

PARTIES ..................................................................................................... 10 II.

A. Plaintiffs ............................................................................................ 10

B. Defendants ......................................................................................... 17

FACTUAL ALLEGATIONS ...................................................................... 19 III.

A. The Environmental Challenges Posed by Diesel Engines

and the U.S. Regulatory Response Thereto ...................................... 19

The Emissions Trading System .............................................. 24 1.

Cummins’ Entry into Clean-Diesel Market ............................ 26 2.

Dodge and Cummins Jointly Develop and Promote 3.

the Affected Vehicles .............................................................. 28

Cummins ................................................................................. 28 4.

FCA ......................................................................................... 34 5.

a. 2008 Brochure for Ram 2500/3500 Trucks .................. 35

b. 2009 Brochure for Ram 2500/3500 Trucks .................. 36

c. 2010 Brochure for Ram 2500/3500 Trucks .................. 37

d. 2011 Brochure for Ram 2500/3500 Trucks .................. 37

e. 2012 Brochure for Ram 2500/3500 Trucks .................. 38

The Worldwide Emissions Scandal ........................................ 40 6.

The Defendants’ Emissions Deception ................................... 44 7.

The Environmental Damage ................................................... 47 8.


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Plaintiffs’ and Class Members’ Economic Damage ............... 50 9.

TOLLING OF THE STATUTE OF LIMITATIONS ................................. 51 IV.

A. Discovery Rule Tolling ..................................................................... 51

B. Fraudulent Concealment Tolling ....................................................... 53

C. Estoppel ............................................................................................. 53

CLASS ALLEGATIONS ............................................................................ 54 V.

A. Claims Brought on Behalf of the Nationwide Class ......................... 63

COUNT I: VIOLATION OF 18 U.S.C. § 1962(C)–(D): THE

RACKETEER INFLUENCED AND CORRUPT

ORGANIZATIONS ACT (“RICO”) ........................................................... 63

The Emission Fraud Enterprise ............................................... 65 1.

Mail and Wire Fraud ............................................................... 70 2.

COUNT II: VIOLATIONS OF 15 U.S.C. § 2301 ET SEQ. THE

MAGNUSON-MOSS WARRANTY ACT (“MMWA”)............................ 78

B. Claims Brought on Behalf of the Michigan Subclass ....................... 81

COUNT I VIOLATION OF THE MICHIGAN CONSUMER

PROTECTION ACT (MICH. COMP. LAWS § 445.903 ET

SEQ.) ............................................................................................................ 81

COUNT II FRAUDULENT CONCEALMENT (BASED ON

MICHIGAN LAW) ..................................................................................... 86

COUNT III BREACH OF CONTRACT (BASED ON MICHIGAN

LAW) ........................................................................................................... 93

C. Claims Brought on Behalf of the Alabama Subclass ........................ 95

COUNT I VIOLATIONS OF THE ALABAMA DECEPTIVE

TRADE PRACTICES ACT (ALA. CODE § 8-19-1 ET SEQ.) .................. 95

COUNT II BREACH OF CONTRACT (BASED ON ALABAMA

LAW) ........................................................................................................... 96


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COUNT III FRAUDULENT CONCEALMENT (BASED ON

ALABAMA LAW) ...................................................................................... 98

D. Claims Brought on Behalf of the Alaska Subclass ......................... 105

COUNT I VIOLATION OF THE ALASKA UNFAIR TRADE

PRACTICES AND CONSUMER PROTECTION ACT

(ALASKA STAT. ANN. § 45.50.471 ET SEQ.) ...................................... 105


ALASKA LAW) ........................................................................................ 106

COUNT III BREACH OF CONTRACT (BASED ON ALASKA

LAW) ......................................................................................................... 114

E. Claims Brought on Behalf of the Arizona Subclass ....................... 115

COUNT I VIOLATIONS OF THE ARIZONA CONSUMER

FRAUD ACT (ARIZ. REV. STAT. § 44-1521 ET SEQ.) ........................ 115

COUNT II BREACH OF CONTRACT (BASED ON ARIZONA

LAW) ......................................................................................................... 120


ARIZONA LAW) ...................................................................................... 121

F. Claims Brought on Behalf of the Arkansas Subclass ..................... 129

COUNT I VIOLATIONS OF THE DECEPTIVE TRADE

PRACTICE ACT (ARK. CODE ANN. § 4-88-101 ET SEQ.) ................. 129


ARKANSAS LAW) .................................................................................. 134

COUNT III BREACH OF CONTRACT (BASED ON ARKANSAS

LAW) ......................................................................................................... 141

G. Claims Brought on Behalf of the California Subclass .................... 143

COUNT I VIOLATIONS OF THE CALIFORNIA UNFAIR

COMPETITION LAW (CAL. BUS. & PROF. CODE § 17200

ET SEQ.) .................................................................................................... 143


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COUNT II VIOLATIONS OF THE CALIFORNIA CONSUMER

LEGAL REMEDIES ACT (CAL. CIV. CODE § 1750 ET

SEQ.) .......................................................................................................... 148

COUNT III VIOLATIONS OF THE CALIFORNIA FALSE

ADVERTISING LAW (CAL. BUS. & PROF. CODE § 17500

ET SEQ.) .................................................................................................... 154

COUNT IV BREACH OF CONTRACT (BASED ON

CALIFORNIA LAW) ................................................................................ 156

COUNT V FRAUDULENT CONCEALMENT (BASED ON

CALIFORNIA LAW) ................................................................................ 158

H. Claims Brought on Behalf of the Colorado Subclass ..................... 166

COUNT I VIOLATIONS OF THE COLORADO CONSUMER

PROTECTION ACT (COLO. REV. STAT. § 6-1-101 ET

SEQ.) .......................................................................................................... 166

COUNT II BREACH OF CONTRACT (BASED ON COLORADO

LAW) ......................................................................................................... 171


COLORADO LAW) .................................................................................. 172

I. Claims Brought on Behalf of the Connecticut Subclass ................. 180

COUNT I VIOLATIONS OF THE CONNECTICUT UNFAIR

TRADE PRACTICES ACT (CONN. GEN. STAT. ANN. § 42-

110A ET SEQ.) .......................................................................................... 180

COUNT II BREACH OF CONTRACT (BASED ON

CONNECTICUT LAW) ............................................................................ 185

COUNT III FRAUDULENT NON-DISCLOSURE (BASED ON

CONNECTICUT LAW) ............................................................................ 187

J. Claims Brought on Behalf of the Delaware Subclass ..................... 194

COUNT I VIOLATIONS OF THE DELAWARE CONSUMER

FRAUD ACT (DEL. CODE § 2513 ET SEQ.) ......................................... 194


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COUNT II BREACH OF CONTRACT (BASED ON DELAWARE

LAW) ......................................................................................................... 199


DELAWARE LAW) ................................................................................. 201

K. Claims Brought on Behalf of the District of Columbia

Subclass ........................................................................................... 208

COUNT I VIOLATION OF THE CONSUMER PROTECTION

PROCEDURES ACT (D.C. CODE § 28-3901 ET SEQ.)......................... 208


DISTRICT OF COLUMBIA LAW) ......................................................... 213

COUNT III BREACH OF CONTRACT (BASED ON DISTRICT OF

COLUMBIA LAW)................................................................................... 220

L. Claims Brought on Behalf of the Florida Subclass ......................... 222

COUNT I VIOLATIONS OF THE FLORIDA UNFAIR AND

DECEPTIVE TRADE PRACTICES ACT (FLA. STAT.

§ 501.201 ET SEQ.) ................................................................................... 222

COUNT II BREACH OF CONTRACT (BASED ON FLORIDA

LAW) ......................................................................................................... 227


FLORIDA LAW) ....................................................................................... 229

M. Claims Brought on Behalf of the Georgia Subclass ....................... 236

COUNT I VIOLATION OF GEORGIA’S FAIR BUSINESS

PRACTICES ACT (GA. CODE ANN. § 10-1-390 ET SEQ.) .................. 236

COUNT II BREACH OF CONTRACT (BASED ON GEORGIA

LAW) ......................................................................................................... 237


GEORGIA LAW) ...................................................................................... 238

N. Claims Brought on Behalf of the Hawaii Subclass ......................... 246


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COUNT I UNFAIR AND DECEPTIVE ACTS IN VIOLATION OF

HAWAII LAW (HAW. REV. STAT. § 480 ET SEQ.) ............................. 246


HAWAII LAW) ......................................................................................... 250

COUNT III BREACH OF CONTRACT (BASED ON HAWAII

LAW) ......................................................................................................... 258

O. Claims Brought on Behalf of the Idaho Subclass ........................... 259

COUNT I VIOLATIONS OF THE IDAHO CONSUMER

PROTECTION ACT (IDAHO CODE § 48-601 ET SEQ.) ...................... 259

COUNT II BREACH OF CONTRACT (BASED ON IDAHO LAW) ............ 264


IDAHO LAW) ........................................................................................... 265

P. Claims Brought on Behalf of the Illinois Subclass ......................... 273

COUNT I VIOLATION OF THE ILLINOIS CONSUMER FRAUD

AND DECEPTIVE BUSINESS PRACTICES ACT (815 ILL.

COMP. STAT. 505/1 ET SEQ. AND 720 ILL. COMP. STAT.

295/1A) ...................................................................................................... 273

COUNT II BREACH OF CONTRACT (BASED ON ILLINOIS

LAW) ......................................................................................................... 278


ILLINOIS LAW) ....................................................................................... 279

Q. Claims Brought on Behalf of the Kansas Subclass ......................... 287

COUNT I VIOLATIONS OF THE KANSAS CONSUMER

PROTECTION ACT (KAN. STAT. ANN. § 50-623 ET SEQ.) ............... 287


KANSAS LAW) ........................................................................................ 292

COUNT III BREACH OF CONTRACT (BASED ON KANSAS

LAW) ......................................................................................................... 299

R. Claims Brought on Behalf of the Kentucky Subclass ..................... 301


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COUNT I VIOLATIONS OF THE KENTUCKY CONSUMER

PROTECTION ACT (KY. REV. STAT. ANN. § 367.110 ET

SEQ.) .......................................................................................................... 301

COUNT II BREACH OF CONTRACT (BASED ON KENTUCKY

LAW) ......................................................................................................... 306

COUNT III FRAUD BY OMISSION (BASED ON KENTUCKY

LAW) ......................................................................................................... 307

S. Claims Brought on Behalf of the Louisiana Subclass..................... 315

COUNT I VIOLATION OF THE LOUISIANA UNFAIR TRADE

PRACTICES AND CONSUMER PROTECTION LAW (LA.

STAT. ANN. § 51:1401 ET SEQ.) ............................................................ 315


LOUISIANA LAW) .................................................................................. 319

COUNT III BREACH OF CONTRACT (BASED ON LOUISIANA

LAW) ......................................................................................................... 327

T. Claims Brought on Behalf of the Maine Subclass .......................... 328

COUNT I VIOLATION OF MAINE UNFAIR TRADE PRACTICES

ACT (ME. REV. STAT. ANN. TIT. 5 § 205-A ET SEQ.) ....................... 328


MAINE LAW) ........................................................................................... 329

COUNT III BREACH OF CONTRACT (BASED ON MAINE

LAW) ......................................................................................................... 336

U. Claims Brought on Behalf of the Maryland Subclass ..................... 338

COUNT I VIOLATIONS OF THE MARYLAND CONSUMER

PROTECTION ACT (MD. CODE ANN. COM. LAW § 13-101

ET SEQ.) .................................................................................................... 338

COUNT II BREACH OF CONTRACT (BASED ON MARYLAND

LAW) ......................................................................................................... 343


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MARYLAND LAW) ................................................................................. 344

V. Claims Brought on Behalf of the Massachusetts Subclass ............. 352

COUNT I VIOLATIONS OF THE MASSACHUSETTS

CONSUMER PROTECTION ACT (MASS. GEN. LAWS CH.

93A) ........................................................................................................... 352


MASSACHUSETTS LAW) ...................................................................... 352


MASSACHUSETTS LAW) ...................................................................... 354

W. Claims Brought on Behalf of the Minnesota Subclass ................... 361

COUNT I VIOLATION OF THE MINNESOTA PREVENTION OF

CONSUMER FRAUD ACT (MINN. STAT. § 325F.68 ET

SEQ.) .......................................................................................................... 361

COUNT II BREACH OF CONTRACT (BASED ON MINNESOTA

LAW) ......................................................................................................... 367


MINNESOTA LAW) ................................................................................ 368

X. Claims Brought on Behalf of the Missouri Subclass ...................... 376

COUNT I VIOLATIONS OF THE MISSOURI MERCHANDISING

PRACTICES ACT (MO. REV. STAT. § 407.010 ET SEQ.) ................... 376

COUNT II BREACH OF CONTRACT (BASED ON MISSOURI

LAW) ......................................................................................................... 381


MISSOURI LAW) ..................................................................................... 382

Y. Claims Brought on Behalf of the Montana Subclass ...................... 390

COUNT I VIOLATION OF MONTANA UNFAIR TRADE

PRACTICES AND CONSUMER PROTECTION ACT OF

1973 (MONT. CODE ANN. § 30-14-101 ET SEQ.) ................................ 390


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COUNT II BREACH OF CONTRACT (BASED ON MONTANA

LAW) ......................................................................................................... 395


MONTANA LAW) ................................................................................... 397

Z. Claims Brought on Behalf of the Nebraska Subclass ..................... 404

COUNT I VIOLATION OF THE NEBRASKA CONSUMER

PROTECTION ACT (NEB. REV. STAT. § 59-1601 ET SEQ.) .............. 404


NEBRASKA LAW) .................................................................................. 408

COUNT III BREACH OF CONTRACT (BASED ON NEBRASKA

LAW) ......................................................................................................... 416

AA. Claims Brought on Behalf of the Nevada Subclass ........................ 417

COUNT I VIOLATIONS OF THE NEVADA DECEPTIVE TRADE

PRACTICES ACT (NEV. REV. STAT. § 598.0903 ET SEQ.) ............... 417

COUNT II BREACH OF CONTRACT (BASED ON NEVADA

LAW) ......................................................................................................... 422


NEVADA LAW) ....................................................................................... 424

BB. Claims Brought on Behalf of the New Hampshire

Subclass under New Hampshire Law ............................................. 431

COUNT I VIOLATION OF N.H. CONSUMER PROTECTION ACT

(N.H. REV. STAT. ANN. § 358-A:1 ET SEQ.) ........................................ 431

COUNT II FRAUDULENT CONCEALMENT (BASED ON NEW

HAMPSHIRE LAW) ................................................................................. 435

COUNT III BREACH OF CONTRACT (BASED ON NEW

HAMPSHIRE LAW) ................................................................................. 443

CC. Claims Brought on Behalf of the New Jersey Subclass

Under New Jersey Law ................................................................... 444


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COUNT I VIOLATIONS OF THE NEW JERSEY CONSUMER

FRAUD ACT (N.J.S.A. § 56:8-1 ET SEQ.) .............................................. 444

COUNT II BREACH OF CONTRACT (BASED ON NEW JERSEY

LAW) ......................................................................................................... 449

COUNT III FRAUDULENT CONCEALMENT (BASED ON NEW

JERSEY LAW) .......................................................................................... 450

DD. Claims Brought on Behalf of the New Mexico Subclass ................ 458

COUNT I VIOLATIONS OF THE NEW MEXICO UNFAIR

TRADE PRACTICES ACT (N.M. STAT. ANN. § 57-12-1 ET

SEQ.) .......................................................................................................... 458

COUNT II FRAUDULENT CONCEALMENT (BASED ON NEW

MEXICO LAW) ........................................................................................ 463

COUNT III BREACH OF CONTRACT (BASED ON NEW

MEXICO LAW) ........................................................................................ 470

EE. Claims Brought on Behalf of the New York Subclass .................... 472

COUNT I VIOLATIONS OF NEW YORK GENERAL BUSINESS

LAW § 349 (N.Y. GEN. BUS. LAW § 349) ............................................ 472

COUNT II VIOLATIONS OF NEW YORK GENERAL BUSINESS

LAW § 350 (N.Y. GEN. BUS. LAW § 350) ............................................ 477

COUNT III BREACH OF CONTRACT (BASED ON NEW YORK

LAW) ......................................................................................................... 480

COUNT IV FRAUDULENT CONCEALMENT (BASED ON NEW

YORK LAW) ............................................................................................. 482

FF. Claims Brought on Behalf of the North Carolina Subclass ............ 489

COUNT I VIOLATIONS OF THE NORTH CAROLINA UNFAIR

AND DECEPTIVE ACTS AND PRACTICES ACT (N.C.

GEN. STAT. § 75-1.1 ET SEQ.) ............................................................... 489

COUNT II BREACH OF CONTRACT (BASED ON NORTH

CAROLINA LAW) ................................................................................... 494


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NORTH CAROLINA LAW) .................................................................... 496

GG. Claims Brought on Behalf of the North Dakota Subclass .............. 503

COUNT I VIOLATION OF THE NORTH DAKOTA CONSUMER

FRAUD ACT (N.D. CENT. CODE § 51-15-02) ...................................... 503


NORTH DAKOTA LAW) ........................................................................ 508

COUNT III BREACH OF CONTRACT (BASED ON NORTH

DAKOTA LAW) ....................................................................................... 516

HH. Claims Brought on Behalf of the Ohio Subclass ............................ 517

COUNT I VIOLATIONS OF THE OHIO CONSUMER SALES

PRACTICES ACT (OHIO REV. CODE § 1345.01 ET SEQ.) ................. 517

COUNT II BREACH OF CONTRACT (BASED ON OHIO LAW) ............... 522

COUNT III FRAUDULENT CONCEALMENT (BASED ON OHIO

LAW) ......................................................................................................... 523

II. Claims Brought on Behalf of the Oklahoma Subclass .................... 531

COUNT I VIOLATION OF OKLAHOMA CONSUMER

PROTECTION ACT (OKLA. STAT. TIT. 15 § 751 ET SEQ.) ............... 531


OKLAHOMA LAW)................................................................................. 536

COUNT III BREACH OF CONTRACT (BASED ON OKLAHOMA

LAW) ......................................................................................................... 544

JJ. Claims Brought on Behalf of the Pennsylvania Subclass ............... 545

COUNT I VIOLATIONS OF THE PENNSYLVANIA UNFAIR

TRADE PRACTICES AND CONSUMER PROTECTION

LAW (73 P.S. § 201-1 ET SEQ.) ............................................................... 545


PENNSYLVANIA LAW) ......................................................................... 550


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PENNSYLVANIA LAW) ......................................................................... 552

KK. Claims Brought on Behalf of the Rhode Island Subclass ............... 559

COUNT I VIOLATION OF THE RHODE ISLAND UNFAIR

TRADE PRACTICES AND CONSUMER PROTECTION

ACT (R.I. GEN. LAWS § 6-13.1 ET SEQ.) .............................................. 559


RHODE ISLAND LAW) .......................................................................... 564

COUNT III BREACH OF CONTRACT (BASED ON RHODE

ISLAND LAW) ......................................................................................... 572

LL. Claims Brought on Behalf of the South Carolina Subclass ............ 573

COUNT I VIOLATIONS OF THE SOUTH CAROLINA UNFAIR

TRADE PRACTICES ACT (S.C. CODE ANN. § 39-5-10 ET

SEQ.) .......................................................................................................... 573

COUNT II VIOLATIONS OF THE SOUTH CAROLINA

REGULATION OF MANUFACTURERS, DISTRIBUTORS,

AND DEALERS ACT (S.C. CODE ANN. § 56-15-10 ET

SEQ.) .......................................................................................................... 578


SOUTH CAROLINA LAW) ..................................................................... 579

COUNT IV BREACH OF CONTRACT (BASED ON SOUTH

CAROLINA LAW) ................................................................................... 587

MM. Claims Brought on Behalf of the Tennessee Subclass .................... 588

COUNT I VIOLATIONS OF THE TENNESSEE CONSUMER

PROTECTION ACT (TENN. CODE ANN. § 47-18-101 ET

SEQ.) .......................................................................................................... 588

COUNT II BREACH OF CONTRACT (BASED ON TENNESSEE

LAW) ......................................................................................................... 594


TENNESSEE LAW) ................................................................................. 595


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NN. Claims Brought on Behalf of the Texas Subclass ........................... 603

COUNT I VIOLATIONS OF THE DECEPTIVE TRADE

PRACTICES ACT (TEX. BUS. & COM. CODE § 17.41 ET

SEQ.) .......................................................................................................... 603

COUNT II BREACH OF CONTRACT (BASED ON TEXAS LAW) ............. 603


TEXAS LAW) ........................................................................................... 605

OO. Claims Brought on Behalf of the Utah Subclass ............................. 613

COUNT I VIOLATIONS OF THE UTAH CONSUMER SALES

PRACTICES ACT (UTAH CODE ANN. § 13-11-1 ET SEQ.) ............... 613

COUNT II BREACH OF CONTRACT (BASED ON UTAH LAW) ............... 618

COUNT III FRAUDULENT CONCEALMENT (BASED ON UTAH

LAW) ......................................................................................................... 619

PP. Claims Brought on Behalf of the Vermont Subclass ...................... 627

COUNT I VIOLATION OF VERMONT CONSUMER FRAUD

ACT (VT. STAT. ANN. TIT. 9, § 2451 ET SEQ.) ................................... 627


VERMONT LAW) .................................................................................... 632

COUNT III BREACH OF CONTRACT (BASED ON VERMONT

LAW) ......................................................................................................... 640

QQ. Claims Brought on Behalf of the Virginia Subclass ....................... 641

COUNT I VIOLATIONS OF THE VIRGINIA CONSUMER

PROTECTION ACT (VA. CODE ANN. § 59.1-196 ET SEQ.) ............... 641

COUNT II BREACH OF CONTRACT (BASED ON VIRGINIA

LAW) ......................................................................................................... 646


VIIRGINIA LAW) .................................................................................... 648

RR. Claims Brought on Behalf of the Washington Subclass ................. 655


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COUNT I VIOLATION OF THE WASHINGTON CONSUMER

PROTECTION ACT (WASH. REV. CODE ANN. § 19.86.010

ET SEQ.) .................................................................................................... 655


WASHINGTON LAW) ............................................................................. 660


WASHINGTON LAW) ............................................................................. 662

SS. Claims Brought on Behalf of the West Virginia Subclass .............. 669

COUNT I VIOLATIONS OF THE WEST VIRGINIA CONSUMER

CREDIT AND PROTECTION ACT (W. VA. CODE § 46A-1-

101 ET SEQ.) ............................................................................................. 669

COUNT II BREACH OF CONTRACT (BASED ON WEST

VIRGINIA LAW) ...................................................................................... 670

COUNT III FRAUDULENT CONCEALMENT (BASED ON WEST

VIRGINIA LAW) ...................................................................................... 671

TT. Claims Brought on Behalf of the Wisconsin Subclass ................... 679

COUNT I VIOLATIONS OF THE WISCONSIN DECEPTIVE

TRADE PRACTICES ACT (WIS. STAT. § 110.18) ............................... 679

COUNT II BREACH OF CONTRACT (BASED ON WISCONSIN

LAW) ......................................................................................................... 684


WISCONSIN LAW) .................................................................................. 685

REQUEST FOR RELIEF .......................................................................... 693 VI.

DEMAND FOR JURY TRIAL ................................................................. 694 VII.


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Plaintiffs James Bledsoe, Paul Chouffet, Jay Martin, and Martin Rivas,

individually and on behalf of all others similarly situated (the “Class”), allege the

following based upon the investigation of counsel, the review of scientific papers,

and the investigation of experts.

INTRODUCTION I.

1. The world is besieged by a scandal involving tens of millions of diesel

cars that violate relevant emissions standards and were sold under false pretenses

that they were “clean” or “cleaner than gas vehicles,” or environmentally friendly.

The United States, most European countries, and other nations have implemented

strict emissions standards for diesel engines designed to protect all of us from the

harmful byproducts found in the exhaust from diesel engines.

2. Diesel engines pose a difficult challenge to the environment because

they have an inherent trade-off between power, fuel efficiency, and emissions.

Compared to gasoline engines, diesel engines generally produce greater torque,

low-end power, better drivability, and much higher fuel efficiency. But these

benefits come at the cost of much dirtier and more harmful emissions.

3. One by-product of diesel combustion is oxides of nitrogen (“NOx”),

which generally describes several compounds comprised of nitrogen and oxygen

atoms. These compounds are formed in the cylinder of the engine during the high

temperature combustion process. NOx pollution contributes to nitrogen dioxide,


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particulate matter in the air, and reacts with sunlight in the atmosphere to form

ozone. Exposure to these pollutants has been linked with serious health dangers,

including serious respiratory illnesses and premature death due to respiratory-

related or cardiovascular-related effects. The United States Government, through

the Environmental Protection Agency (EPA), as well as many states like California

have passed and enforced laws designed to protect United States citizens from

these pollutants and certain chemicals and agents known to cause disease in

humans. Automobile manufacturers must abide by these U.S. laws and must

adhere to EPA rules and regulations.

4. Seeing a major opportunity for growth, almost all of the major

automobile manufacturers rushed to develop “clean diesel” and promoted new

diesel vehicles as environmentally friendly and clean. Volkswagen, Mercedes,

GM, FCA, and other manufacturers began selling diesel cars and trucks as more

powerful, yet also as an environmentally friendly alternative to gasoline vehicles.

And the marketing worked, as millions of diesel vehicles were purchased between

2007–2016.

5. The green bubble with respect to diesel vehicles popped on

September 18, 2015, when the EPA issued a Notice of Violation of the Clean Air

Act (“CAA”) (the “First NOV”) to Volkswagen Group of America, Audi AG, and

VW America for installing illegal “defeat devices” in 2009–2015 Volkswagen and


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Audi diesel cars equipped with 2.0-liter diesel engines. A defeat device, as defined

by the EPA, is any apparatus that unduly reduces the effectiveness of emissions

control systems under conditions a vehicle may reasonably be expected to

experience. The EPA found that the VW/Audi Defeat Device allowed the vehicles

to pass emissions testing while in the real world these vehicles polluted far in

excess of emissions standards. The California Air Resources Board (“CARB”)

also announced that it had initiated an enforcement investigation of Volkswagen

pertaining to the vehicles at issue in the First NOV.

6. On September 22, 2015, Volkswagen announced that 11 million

diesel cars worldwide were installed with the same Defeat Device software that

had evaded emissions testing by U.S. regulators. Contemporaneously,

Volkswagen announced that it had set aside reserves of 6.5 billion euros ($7.3

billion) in the third quarter to address the matter.1

7. Volkswagen wasn’t alone; soon government agencies began to reveal

that many manufacturers had produced dozens of models that were exceeding

emissions standards.

8. The “dieselgate” issue is not limited to passenger vehicles, and hence

this case. In 2001, the Environmental Protection Agency (EPA) announced

1 See Exhibit 1, Nathan Bomey, Volkswagen Emission Scandal Widens: 11

Million Cars Affected, USA Today (Sept. 22, 2015), http://www.usatoday.com/story/money/cars/2015/09/22/volkswagen-emissions-scandal/72605874/.


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stringent emissions standards for heavy-duty highway diesel engines, slated to take

effect in 2010.2 Cummins Inc. and Chrysler (now known as FCA US LLC

3) saw a

golden business opportunity, and worked together to build a truck that, at least on

paper, met these standards, three years ahead of schedule.4 Cummins announced

the new truck as the “strongest, cleanest, quietest best-in-class 2007 Cummins

Turbo Diesel. Leapfrogging the competition, the Cummins 6.7-liter Turbo Diesel

engine, used exclusively in Dodge Ram 2500 and 3500 Heavy Duty pickup trucks,

has increased displacement[,] providing increased horsepower and torque[,] while

achieving the world's lowest 2010 Environmental Protection Agency (EPA) NOx

standard a full three years ahead of the requirements.”5

9. In order to produce a diesel engine that has desirable torque and

power characteristics, good fuel economy, and emissions levels low enough to

meet the stringent European and United States governmental emission standards,

FCA and Cummins (collectively, the Defendants) developed the 6.7-liter diesel

engine with a sophisticated NOx adsorber (the “Adsorber Engine”). The primary

emission control after-treatment technologies include a diesel particulate filter

2 See Exhibit 2, “Cummins Technology Partnerships,” https://cumminsengines.

com/technology-partnerships. 3 FCA stands for Fiat Chrysler Automobiles.

4 See id.

5 Exhibit 3, Cummins Inc.’s Jan. 23, 2007 Press Release, available at http://

investor.cummins.com/phoenix.zhtml?c=112916&p=irol-newsArticle_pf&ID=953050.


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(DPF) and a NOx adsorber catalyst system. The DPF traps and removes

particulate (soot) emissions, while the NOx adsorber system facilitates the capture

and reduction of NOx into less harmful substances, such as nitrogen and oxygen.

10. In contrast to Cummins’ promises, real-world testing has revealed that

the Dodge 2500 and 3500, equipped with the Cummins 6.7-liter turbo diesel

engine (the “Affected Vehicles”), emit dangerous levels of NOx at many times

higher than (i) their gasoline counterparts, (ii) what a reasonable consumer would

expect from the cleanest engine in its class, (iii) United States Environmental

Protection Agency maximum standards, and (iv) the levels set for the vehicles to

obtain a certificate of compliance that allows them to be sold in the United States.

The self-proclaimed “cleanest engine in its class” is far from clean.6

11. To appeal to environmentally conscious consumers, FCA and

Cummins vigorously marketed the Adsorber Engine, and the Dodge Ram 2500 and

3500 with the Adsorber Engine, as the “strongest, cleanest, quietest” diesel engine

in its class.”7 In 2011, Cummins stated that the “product has been in commercial

use for over four years, delighting customers with its performance and durability,

and delivering on Cummins [sic] commitment to a cleaner, healthier

6 See Exhibit 4, “EPA 2010 Exhaust Emissions Regulations,” available at

https://cumminsengines.com/uploads/docs/4971350.pdf. 7 See id.


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environment.”8 FCA claims that “[t]he savings are measured in time, expense, and

hassles: both versions of the 6.7-liter Cummins Turbo Diesel in Ram Heavy Duty

pickups meet all 50-state emissions standards with no need for a [diesel exhaust

fluid] system. Neither Ford nor GM pickups can offer that value.”9

12. These representations are deceptive and false. The Affected Vehicles

routinely exceed applicable Federal and California emissions limits. The legal

limit of NOx emissions for stop-and-go driving is 200 mg/mile. When tested,

Dodge Ram 2500s emitted 702 mg/mile, and 2,826 mg/mile at maximum emission.

The California NOx limit for highway conditions is 400 mg/mile. Testing for the

2500 shows an average of 756 and max of 2,252 mg/mile.

13. As a result, the representations are deceptive and false because it is

not the “cleanest engine in its class,” and it does not contribute to a “cleaner,

healthier environment.” The representations are also false and deceptive because

one of the Affected Vehicles does not save the consumer “time, expense, and

hassles.” As detailed below, the catalytic converter wears out more quickly

because it is defective, which results in the vehicle burning fuel at a higher rate,

and often requiring customers to replace the converter after the warranty has

expired at a cost of approximately $3,000–$5,000.

8 See id.

9 Exhibit 5, 2012 Dodge Ram brochure, available at http://www.auto-

brochures.com/makes/ram/Ram_US%20HD_2012.pdf.


- 7 -

14. In addition, the Defendants had another reason to rush the Affected

Vehicles to market. Under the EPA regulations, Cummins was able to “bank”

emissions credits to spend on other, dirtier engines.10

Cummins, in turn, could

share those credits with FCA. As a result, the Defendants were able to design and

build dirty trucks—effectively shifting the cost of those dirty trucks to purchasers

of the Affected Vehicles.

15. Thus, the Defendants have perpetrated a gross deception on Plaintiffs

and members of the proposed Class, who the Defendants told were buying low-

emission, efficient, earth-friendly vehicles.

16. The Defendants never disclosed to consumers that the Affected

Vehicles may be “clean” diesels in very limited circumstances, but are “dirty”

diesels under most driving conditions. The Defendants never disclosed that they

prioritize engine power and profits over the environment and people’s time and

money. The Defendants never disclosed that the Affected Vehicles’ emissions

materially exceed the emissions from gasoline-powered vehicles, that the

emissions exceed what a reasonable consumer would expect from a “clean diesel,”

and that emissions materially exceed applicable emissions limits in real world

driving conditions. The Defendants never disclosed that their defective NOx

10

See 40 C.F.R. § 1036.701 et seq.


- 8 -

adsorber would ultimately cost the consumer more money because of increased

fuel costs, increased maintenance costs, and the cost of replacing the catalyst.

17. Plaintiffs bring this action individually and on behalf of all other

current and former owners or lessees of Affected Vehicles. Plaintiffs seek

damages and equitable relief for the Defendants’ misconduct related to the design,

manufacture, marketing, sale, and lease of Affected Vehicles with unlawfully high

emissions, as alleged in this Complaint.

18. The violations of law alleged herein are in two distinct categories.

Plaintiffs’ RICO allegations are based in part on a pattern of conduct and scheme

that include obtaining certificates of compliance for vehicles that were in fact non-

complaint and are illegally on the road. Plaintiffs’ state law counts rely on

Defendants’ deceptive conduct in failing to disclose the polluting nature of the

Dodge Ram and the fact that these vehicles do not perform as advertised.

Plaintiffs’ state law claims are not based on a violation of emission standards.

A. Jurisdiction and Venue

19. This Court has original jurisdiction over the subject matter of this

action pursuant to 28 U.S.C. §§ 1331 & 1332. There is also complete diversity of

citizenship in this case because each Defendant is a citizen of a different state than

any of the Plaintiffs, and the amount in controversy exceeds the sum of $75,000.

28 U.S.C. § 1332. This Court also has supplemental jurisdiction over the state law


- 9 -

claims because those claims are integrally related to the federal claims and form

part of the same case and controversy under 28 U.S.C. § 1367.

20. This Court has personal jurisdiction over FCA by virtue of its

transacting and doing business in this district and because FCA is registered to do

business in Michigan. FCA has transacted and done business in the State of

Michigan and in this district and has engaged in statutory violations and common

law tortious conduct in Michigan and in this district.

21. This Court has personal jurisdiction over Cummins by virtue of its

transacting and doing business in this district and because Cummins is registered to

do business in Michigan. Cummins has transacted and done business in the State

of Michigan and in this district and has engaged in statutory violations and

common law tortious conduct in Michigan and in this district.

22. Venue is proper pursuant to 28 U.S.C. § 1391(a) & (b) because a

substantial part of the events or omissions giving rise to the claims occurred in this

district. Venue is proper pursuant to 18 U.S.C. § 1965(a) & (b) because

Defendants transact affairs in this district, and the ends of justice require it. Venue

is also proper in this district under 28 U.S.C. § 1391(b)(1) because the Defendants

reside in this judicial district for venue purposes.


- 10 -

PARTIES II.

A. Plaintiffs

23. Each and every Plaintiff and Class member has suffered an

ascertainable loss as a result of the Defendants’ omissions and/or

misrepresentations associated with the Adsorber Engine, including, but not limited

to, out-of-pocket loss and future attempted repairs, future additional fuel costs,

decreased performance of the vehicle, and diminished value of the vehicle.

24. None of the Defendants, nor any of its agents, dealers, or other

representatives informed Plaintiffs or Class members of the existence of the

comparatively and unlawfully high emissions and/or defective nature of the

Adsorber Engine of the Affected Vehicles prior to purchase.

25. Plaintiff James Bledsoe (for the purpose of this paragraph, “Plaintiff”)

is a resident of California domiciled in Delhi, California. On or about September

7, 2007, Plaintiff purchased a 2007 Dodge Ram 2500 (for the purpose of this

paragraph, the “Affected Vehicle”), in Merced, California. Plaintiff purchased,

and still owns, this vehicle. Unknown to Plaintiff, at the time the vehicle was

purchased, it was equipped with an emissions system that turned off or limited its

emissions reduction system during normal driving conditions and emitted

pollutants such as NOx at many multiples of emissions emitted from gasoline-

powered vehicles, at many times the level a reasonable consumer would expect


- 11 -

from a “Clean Diesel,” and at many multiples of that allowed by federal law. The

Defendants’ unfair, unlawful, and deceptive conduct in designing, manufacturing,

marketing, selling, and leasing the Affected Vehicle without proper emission

controls has caused Plaintiff out-of-pocket loss, future attempted repairs, and

diminished value of his vehicle. FCA and Cummins knew about, manipulated, or

recklessly disregarded the inadequate emission controls during normal driving

conditions, but did not disclose such facts or their effects to Plaintiff, so Plaintiff

purchased his vehicle on the reasonable, but mistaken, belief that his vehicle was a

“clean diesel” as compared to gasoline vehicles, complied with United States

emissions standards, and would retain all of its operating characteristics throughout

its useful life, including high fuel economy. Plaintiff selected and ultimately

purchased his vehicle, in part, because of the Clean Diesel system, as represented

through advertisements and representations made by the Defendants. Plaintiff

recalls that the advertisements and representations touted the cleanliness of the

engine system for the environment and the efficiency and power/performance of

the engine system. None of the advertisements reviewed or representations

received by Plaintiff contained any disclosure that the Affected Vehicle had high

emissions compared to gasoline vehicles and the fact that the Defendants had

designed part of the emissions reduction system to emit very high emissions for

extended periods at a high rate of frequency during normal driving conditions.


- 12 -

Had Defendants disclosed this design, and the fact that the Affected Vehicle

actually emitted pollutants at a much higher level than gasoline vehicles do, and at

a much higher level than a reasonable consumer would expect, and emitted

unlawfully high levels of pollutants, and would require Plaintiff to pay out-of-

pocket costs to fix it, Plaintiff would have received these disclosures, and would

not have purchased the vehicle, or would have paid less for it.

26. Plaintiff Paul Chouffet (for the purpose of this paragraph, “Plaintiff”)

is a resident of Texas domiciled in Irving, Texas. On or about May 12, 2009,

Plaintiff purchased a 2009 Dodge Ram 2500 (for the purpose of this paragraph, the

“Affected Vehicle”), in Turlock, Texas. Plaintiff purchased, and still owns, this

vehicle. Unknown to Plaintiff, at the time the vehicle was purchased, it was

equipped with an emissions system that turned off or limited its emissions

reduction system during normal driving conditions and emitted pollutants such as

NOx at many multiples of emissions emitted from gasoline-powered vehicles, at

many times the level a reasonable consumer would expect from a “Clean Diesel,”

and at many multiples of that allowed by federal law. The Defendants’ unfair,

unlawful, and deceptive conduct in designing, manufacturing, marketing, selling,

and leasing the Affected Vehicle without proper emission controls has caused

Plaintiff out-of-pocket loss, future attempted repairs, and diminished value of his

vehicle. FCA and Cummins knew about, manipulated, or recklessly disregarded


- 13 -

the inadequate emission controls during normal driving conditions, but did not

disclose such facts or their effects to Plaintiff, so Plaintiff purchased his vehicle on

the reasonable, but mistaken, belief that his vehicle was a “clean diesel” as

compared to gasoline vehicles, complied with United States emissions standards,

and would retain all of its operating characteristics throughout its useful life,

including high fuel economy. Plaintiff selected and ultimately purchased his

vehicle, in part, because of the Clean Diesel system, as represented through

advertisements and representations made by the Defendants. Plaintiff recalls that

the advertisements and representations touted the cleanliness of the engine system

for the environment and the efficiency and power/performance of the engine

system. None of the advertisements reviewed or representations received by

Plaintiff contained any disclosure that the Affected Vehicle had high emissions

compared to gasoline vehicles and the fact that the Defendants had designed part of

the emissions reduction system to emit very high emissions for extended periods at

a high rate of frequency during normal driving conditions. Had Defendants

disclosed this design, and the fact that the Affected Vehicle actually emitted

pollutants at a much higher level than gasoline vehicles do, and at a much higher

level than a reasonable consumer would expect, and emitted unlawfully high levels

of pollutants, Plaintiff would have received these disclosures, and would not have

purchased the vehicle, or would have paid less for it.


- 14 -

27. Plaintiff Jay Martin (for the purpose of this paragraph, “Plaintiff”) is a

resident of California domiciled in Fort Jones, California. On or about May 28,

2016, Plaintiff purchased a 2008 Dodge Ram 2500 (for the purpose of this

paragraph, the “Affected Vehicle”), in Grants Pass, Oregon. Plaintiff purchased,

and still owns, this vehicle. Unknown to Plaintiff, at the time the vehicle was

















- 15 -













unlawfully high levels of pollutants, Plaintiff would have received these

disclosures, and would not have purchased the vehicle, or would have paid less for

it.

28. Plaintiff Martin Rivas (for the purpose of this paragraph, “Plaintiff”)

is a resident of Texas domiciled in Kingsville, Texas. On or about November 15,

2011, Plaintiff purchased a 2012 Dodge Ram 2500 (for the purpose of this

paragraph, the “Affected Vehicle”), in Kingsville, Texas. Plaintiff purchased, and

still owns, this vehicle. Unknown to Plaintiff, at the time the vehicle was


- 16 -






















- 17 -








unlawfully high levels of pollutants, Plaintiff would have received these

disclosures, and would not have purchased the vehicle, or would have paid less for

it.

29. Each of the Plaintiffs purchased their vehicles at an FCA-authorized

dealership. And each received information about the characteristics, benefits, and

quality of the RAM vehicles at the dealership.

B. Defendants

30. Defendant FCA US LLC (“FCA”) is a limited liability company

organized and existing under the laws of the State of Delaware, and is wholly

owned by holding company Fiat Chrysler Automobiles N.V., a Dutch corporation

headquartered in London, United Kingdom. FCA’s principal place of business and

headquarters is in Auburn Hills, Michigan, in the Eastern District of Michigan.


- 18 -

31. FCA (sometimes referred to as Chrysler) is a motor vehicle

“Manufacturer” and a licensed “Distributor” of new, previously untitled Chrysler,

Dodge, Jeep, and Ram brand motor vehicles. FCA’s Chrysler brand is one of the

“Big Three” American automobile brands. FCA engages in commerce by

distributing and selling new and unused passenger cars and motor vehicles under

its Chrysler, Dodge, Jeep, and Ram brands. Other major divisions of FCA include

Mopar, its automotive parts and accessories division, and SRT, its performance

automobile division. As of 2015, FCA is the seventh largest automaker in the

world by unit production.

32. FCA’s business operations in the United States include the

manufacture, distribution, and sale of motor vehicles and parts through its network

of independent, franchised motor vehicle dealers. FCA is engaged in interstate

commerce in that it sells vehicles through this network located in every state of the

United States.

33. FCA sells its trucks through FCA franchise dealerships. FCA

distributes information about its RAM trucks to its dealers for the purpose of

passing that information to consumers. FCA also understands that its dealers pass

on information from FCA about the characteristics, benefits, and quality of its

RAM products to consumers. The dealers act as FCA’s agents in selling the


- 19 -

Affected Vehicles and disseminating information about the Affected Vehicles to

customers and potential customers.

34. Cummins Inc. is a Fortune 500 company that designs, manufactures,

and distributes engines, filtration, and power generation products. It earned

approximately $19.1 billion in revenue in the year 2015. Cummins is doing

business in the Eastern District of Michigan, and elsewhere. It conducts business

in interstate and foreign commerce through its network of 600 company-owned

and independent distributor facilities, supplying its customers with its products,

and more than 7,200 dealer locations in over 190 countries and territories. It is

headquartered in Columbus, Indiana.

FACTUAL ALLEGATIONS III.

A. The Environmental Challenges Posed by Diesel Engines and the U.S.

Regulatory Response Thereto

35. The United States Government, through the Environmental Protection

Agency (EPA), has passed and enforced laws designed to protect U.S. citizens

from pollution and, in particular, certain chemicals and agents known to cause

disease in humans. Automobile manufacturers must abide by these U.S. laws and

must adhere to EPA rules and regulations.

36. The U.S. Clean Air Act has strict emissions standards for vehicles,

and it requires vehicle manufacturers to certify to the EPA that the vehicles sold in

the United States meet applicable federal emissions standards to control air


- 20 -

pollution. Every vehicle sold in the United States must be covered by an EPA-

issued certificate of conformity.

37. There is a very good reason that these laws and regulations exist,

particularly with regards to vehicles with diesel engines: In 2012, the World

Health Organization declared diesel vehicle emissions to be carcinogenic, and

about as dangerous as asbestos.

38. Diesel engines pose a particularly difficult challenge to the

environment because they have an inherent trade-off between power, fuel

efficiency, and emissions: the greater the power and fuel efficiency, the dirtier and

more harmful the emissions.

39. Instead of using a spark plug to combust highly refined fuel with short

hydrocarbon chains, as gasoline engines do, diesel engines compress a mist of

liquid fuel and air to very high temperatures and pressures, which causes the diesel

to spontaneously combust. This allows for a greater compression ratio and longer

piston stroke, which produces greater efficiency and engine torque (that is, less

fuel consumption and more power).

40. The diesel engine is able to do this both because it operates at a higher

compression ratio than a gasoline engine and because diesel fuel contains more

energy than gasoline.


- 21 -

41. But this greater energy and fuel efficiency come at a cost: diesel

produces dirtier and more dangerous emissions. One by-product of diesel

combustion is oxides of nitrogen (NOx), which include a variety of nitrogen and

oxygen chemical compounds that only form at high temperatures.

42. NOx is a generic term for the mono-nitrogen oxides NO and NO2

(nitric oxide and nitrogen dioxide), which are predominantly produced from the

reaction of nitrogen and oxygen gases in the combustion cylinder during

combustion. NOx is produced by the burning of all fossil fuels, but is particularly

difficult to control from the burning of diesel fuel in lean-burn conditions (which is

the case for nearly all modern on-road diesel engines). NOx is a toxic pollutant,

which produces smog and a litany of environmental and health problems. NOx

pollution contributes to nitrogen dioxide, particulate matter in the air, and reacts

with sunlight in the atmosphere to form ozone. Exposure to these pollutants has

been linked with serious health dangers, including asthma attacks and other

respiratory illness serious enough to send people to the hospital. Ozone and

particulate matter exposure have been associated with premature death due to

respiratory-related or cardiovascular-related effects. Children, the elderly, and

people with pre-existing respiratory illness are at an increased risk of health effects

from these pollutants. NOx can cause breathing problems, headaches, chronically


- 22 -

reduced lung function, eye irritation, and corroded teeth. It can indirectly affect

humans by damaging the ecosystems they rely on.

43. The diesel cycle is inherently more efficient than the comparable

spark-ignited Otto (gasoline) cycle. In fact, diesel engines can convert over 45%

of diesel’s chemical energy into useful mechanical energy, whereas gasoline

engines convert only 30% of gasoline’s chemical energy into mechanical energy.

Though more efficient, diesel engines come with their own set of challenges, as

emissions from diesel engines can include higher levels of NOx and particulate

matter (PM) or soot than emissions from gasoline engines due to the different ways

the different fuels combust and the different ways the resulting emissions are

treated following combustion. Another way NOx emissions can be reduced is

through exhaust gas recirculation or “EGR,” whereby exhaust gases are routed

back into the intake of the engine and mixed with fresh incoming air. Exhaust gas

recirculation lowers NOx by reducing the available oxygen increasing the heat

capacity of the exhaust gas mixture and by reducing maximum combustion

temperatures; however, EGR can also lead to an increase in PM as well. Another

way NOx and PM emissions can be reduced is through expensive exhaust gas

after-treatment devices, primarily, catalytic converters, which use a series of

chemical reactions to transform the chemical composition of a vehicle’s NOx


- 23 -

emissions into less harmful, relatively inert, and nitrogen gas (N2), water (H2O)

and carbon dioxide (CO2).

44. Diesel engines thus operate according to this trade-off between price,

NOx, and PM, and for the EPA to designate a diesel car as a “clean” vehicle, it

must produce both low PM and low NOx. In 2000, the EPA announced stricter

emission standards requiring all diesel models starting in 2007 to produce

drastically less NOx and PM than years prior. Before introducing an Affected

Vehicle into the U.S. stream of commerce (or causing the same), FCA was

required to first apply for, and obtain, an EPA-administered COC certifying that

the vehicle comported with the emission standards for pollutants enumerated in 40

C.F.R. §§ 86.1811-04, 86.1811-09, & 86.1811-10. The CAA expressly prohibits

automakers, like FCA, from introducing a new vehicle into the stream of

commerce without a valid EPA COC.11

Moreover, vehicles must be accurately

described in the COC application “in all material respects” to be deemed covered

by a valid COC.12

California’s emission standards are even more stringent than

those of the EPA. California’s regulator, CARB, requires a similar application

from automakers to obtain an Executive Order, confirming compliance with

California’s emission regulations, before allowing the vehicle onto California’s

roads.

11

See 42 U.S.C. § 7522(a)(1). 12

See 40 C.F.R. § 86.1848-10(c)(6).


- 24 -

The Emissions Trading System 1.

45. Under EPA regulations, engine manufacturers may earn emissions

credits equal to their emissions limit, less the amount of emissions produced by the

engines.13

An engine manufacturer may average, bank, and trade these emissions

credits.14

To “average” credits means the engine manufacturer can use its

emissions credits from one engine model and apply it to another engine model—

effectively allowing the “clean” engine to pay for the dirty engine.15

Banking

credits allows an engine manufacturer to save their emissions credits for future

years.16

In some cases, engine manufacturers can use their credits retrospectively,

to offset previous engines that exceeded their emissions levels.17

Finally, engine

manufacturers can trade and sell these emissions credits, either privately or on the

open market.18

46. According to the EPA, this system was designed to offer “flexibility

for individual emissions sources to tailor their compliance path to their needs,” and

“incentive[s] for early pollution reductions as a result of the ability to bank surplus

13

See Exhibit 6, EPA, “What is Emissions Trading?,” https://www.epa.gov/emissions-trading-resources/what-emissions-trading.

14 See 40 C.F.R. § 1036.701(a).

15 See 40 C.F.R. § 1036.710.

16 See 40 C.F.R. § 1036.715.

17 See id.

18 See 40 C.F.R. § 1036.720.


- 25 -

allowances.”19

The EPA concludes that, “[u]nder the right circumstances,

emissions trading programs have proven to be extremely effective. They can

achieve substantial reductions in pollution while providing accountability and

transparency.”20

47. Falsely claiming to obtain reduced emission levels undermines this

system. By using fraudulently obtained emissions credits for dirty engines, it

increases the pollutants in the air, and shifts the cost of emissions compliance from

the owners of vehicles with dirty engines to the owners of vehicles with clean

engines. According to the TruckTrend website, “Dodge made a decisive move to

head off 2010 emissions regulations at the pass. By increasing the [Cummins 6.7L

engine], the company was able to meet the upcoming 2010 standards early. This

allowed Chrysler to build up EPA emissions credits that could be used during

future model years. During the later part of the 2007 model year, GM introduced

the 6.6L Duramax LMM engine, which made 365 hp and 660 lb-ft, even with the

addition of a DPF.” 21

Upon information and belief, Cummins either gave or sold

FCA the credits to allow FCA to use a more powerful engine that released more

emissions.

19

Exhibit 6. 20

Id. 21

Exhibit 7, “A Decade of Cummins, Duramax, and Power Stroke Diesel Engines” (June 15, 2015), http://www.trucktrend.com/features/1507-a-decade-of-cummins-duramax-and-power-stroke-diesel-engines/.


- 26 -

Cummins’ Entry into Clean-Diesel Market 2.

48. Cummins, founded by Clessie Lyle Cummins, has been developing

diesel engines since 1919.22

49. Cummins has a long history with Dodge, having supplied diesel

engines for the manufacturer since 1988.23

50. In 1990, the EPA amended its air pollution standards under the Clean

Air Act, which addressed diesel emissions.24

51. In 1998, the Department of Justice, on behalf of the EPA, sued every

diesel manufacturer in the United States, including Cummins, for installing

“defeat” devices on their engines.25

The companies were forced to spend a

combined one billion dollars, including an $83.4 million civil penalty, to bring

their engines into conformity with national standards.26

22

See Exhibit 8, “Cummins History,” https://cumminsengines.com/history. 23

See Exhibit 3. 24

See Exhibit 9, “Regulatory Authorities,” https://www.dieselnet.com/standards/us/.

25 See Exhibit 10, U.S. Dep’t of Justice Press Release (June 16, 1998), available

at https://www.justice.gov/archive/opa/pr/1998/June/281.html. 26

See Exhibit 11, “How The EPA Won $1 Billion From Diesel Cheaters Long Before VW” (Sept. 21, 2015), http://jalopnik.com/how-the-epa-won-1-billion-from-diesel-cheaters-long-be-1732109485.


- 27 -

52. But Cummins continued to ship out engines without pollution control

equipment through 2006, for which it would pay an additional $2.1 million

settlement with the DOJ in 2010.27

53. As the EPA began to roll out increasingly tougher standards to take

effect in 2004, 2007, and 2010, Cummins began developing its own clean diesel

technology.

54. Between 2002 and 2007, Cummins increased its R&D budget by 60

percent, to $321 million, with almost a quarter dedicated to meeting the new

emission standards.28

More specifically, it expanded its component segment

budget, which included emissions-related technologies, from $39 million in 2004

to $57 million in 2006. The emphasis was on developing its own system based on

its own proprietary parts.29

55. In 2006, Cummins spent $720,000 on lobbying Congress on the

“development of diesel technology for heavy and light duty trucks.”30

27

See Exhibit 12, “Cummins Inc. Agrees to Pay $2.1 Million Penalty for Diesel Engine Clean Air Act Violations,” U.S. Dep’t of Justice (Feb. 22, 2010), available at https://www.justice.gov/opa/pr/cummins-inc-agrees-pay-21-million-penalty-diesel-engine-clean-air-act-violations.

28 See Exhibit 13, “Cummins: An engine maker bets on clean air—and wins”

(June 8, 2015), http://fortune.com/2015/06/08/cummins-diesel-engine/. 29

Cummins’ story suggests EPA regulations are an opportunity. 30

Exhibit 14, “Lobbying Report” (Aug. 14, 2006), available at http://soprweb.senate.gov/index.cfm?event=getFilingDetails&filingID=8FE6A473-F9E5-4951-BD7F-6019C32510AE&filingTypeID=3.


- 28 -

56. In September 2006, Cummins unveiled its 6.7-liter Turbo Diesel

engine.31

57. By 2015, in addition to its engines, Cummins controlled 41 percent of

the U.S. market on aftermarket diesel cleaning technologies.32

Dodge and Cummins Jointly Develop and Promote the Affected 3.

Vehicles

58. FCA and Cummins moved aggressively to promote its new vehicle,

and to emphasize the strength of the relationship between the two companies.

Below are a selection of public statements made by each, as part of an orchestrated

campaign by each Defendant to sell the Affected Vehicles as a cleaner and more

economical alternative for customers looking to purchase heavy-duty trucks.

Cummins 4.

59. “[E]very Dodge Ram pickup will comply with the 2010 NOx and PM

emissions standards.”33

60. The Dodge 2500 was the “strongest, cleanest, quietest” diesel engine

in its class, and delivered on their “commitment to a cleaner, healthier

environment.”34

31

See Exhibit 15, “Dodge Introduces Cleaner, Quieter and More Powerful 6.7-liter Cummins Turbo-Diesel Engine at State Fair of Texas” (Sept. 28, 2006), http://www.prnewswire.com/news-releases/dodge-introduces-cleaner-quieter-and-more-powerful-67-liter-cummins-turbo-diesel-engine-at-state-fair-of-texas-57203457.html.

32 See Exhibit 13.

33 Exhibit 3.


- 29 -

61. In Cummins’ 2007 Sustainability Report, Cummins noted its Mission

included “to demand that everything we do lead to a cleaner, healthier, safer

environment.”35

62. Cummins’ 2008–2009 Sustainability Report stated: “Ensuring that

everything we do leads to a cleaner, healthier and safer environment has been part

of the Cummins Mission statement for many years. In practice, that means we are

unwavering in our commitment to producing the cleanest diesel engines in the

world and in reducing the Company’s environmental footprint.”36

63. In the same Report, Cummins announced that it “is committed to

helping customers achieve the lowest operating costs. Fuel economy represents

the largest single cost factor in many customers’ operations. Customers count on

Cummins not only for the most fuel efficient products, but also to use Six Sigma37

tools to help them measure, optimize, and control the critical factors that impact

fuel consumption.”

34

Exhibit 4. 35

Exhibit 16, Cummins Inc.’s 2007 Sustainability Report at 34, available at https://www.cummins.com/sites/default/files/sustainability/2007_Sustainability_Report_FINAL.pdf.

36 Exhibit 17, Cummins Inc.’s 2009 Sustainability Report at 9, available at

http://www.cummins.com/sites/default/files/sustainability/Cummins_2009_SustainabilityReport.pdf.

37 “Six Sigma” refers to a series of techniques designed to improve the quality

and reliability of a product. See Exhibit 18, “Six Sigma,” Wikipedia, https://en.wikipedia.org/wiki/Six_Sigma.


- 30 -

64. Cummins’ Mission Statement in 2010: “Demanding that everything

we do leads to a cleaner, healthier, safer environment.”38

65. Cummins’ “10 Statements of Ethical Principles” include: “[1] We

will follow the law everywhere,” … “[5] We will demand that everything we do

leads to a cleaner, healthier and safer environment,” … and “[10] We will create a

culture where all employees take responsibility for ethical behavior.”39

66. “Cummins engineers determined that certifying the Dodge Ram

pickup truck to the 0.2 g/mi 2010 NOx emission standard early would provide

Cummins with significant commercial and technical advantages. Achieving these

stringent emission standards required engineers to reduce particulate and NOx

emissions by more than 90 percent. This catalyst system was used in more than

450,000 Chrysler ISB engines from 2007 to 2013. The EPA credits generated by

this technology allowed Cummins’ teams to focus on hitting the next round of

emissions standards for other engine platforms, and allowed the company to avoid

interim emissions phase-ins. As a result, Cummins increased its heavy duty

market share and gained the market share lead in 2007. Today, the company

38

Exhibit 19, Cummins Inc.’s 2010 Sustainability Report at 1, available at https://www.cummins.com/sites/default/files/sustainability/Cummins_2010_SustainabilityReport_FULL.pdf.

39 Exhibit 16, Cummins Inc.’s 2007 Sustainability Report at 23.


- 31 -

maintains that lead with 41.5 percent of Class 8 vehicles, and 62.5 percent of Class

6 and 7 vehicles.40

67. “The application of the right technology on the Dodge Ram is an

extension of the joint clean diesel development work Cummins and

DaimlerChrysler have performed together for nearly two decades,” said Cummins

President and Chief Operating Officer Joe Loughrey. “The new best-in-class

Cummins Turbo Diesel and the Dodge Ram will provide the strongest, cleanest,

quietest solution for heavy-duty pickup truck customers.”41

68. “Cummins built its 2-millionth pickup truck engine for the Chrysler

Group LLC in December, the latest development in a more than 25-year

partnership between the two companies.”42

69. “This milestone build is a significant achievement for Cummins and

our employees, and is an accomplishment of which we are immensely proud,” said

Wayne Ripberger, General Manager—Pickup and Light Commercial Vehicle

Operations. “At Cummins, we take great pride in each and every engine we

build—whether it’s the first or the 2-millionth.”43

40

See Exhibit 20, “Employees Honored for Making Cummins Stronger through Innovation,” http://social.cummins.com/making-cummins-stronger-innovation/.

41 Exhibit 3.

42 Exhibit 21, “Two-Millionth Cummins Pickup Engine Rolls off Line for

Chrysler,” http://social.cummins.com/two-millionth-cummins-pickup-engine-rolls-line-chrysler/.

43 Id.


- 32 -

70. In winning a 2008 award from Automotive News, Cummins stated

“Cummins has been recognized for the 6.7L Dodge Ram Turbo Diesel engine

which debuted in January 2007 and is available in the Dodge Ram 2500 and 3500

models. The 6.7L diesel engine is the strongest, cleanest, quietest heavy-duty

diesel pickup truck engine available on the market and is the first to meet the 2010

EPA emissions regulations in all 50 states. Cummins achieves this by using a NOx

Adsorber Catalyst—a breakthrough technology designed and integrated by

Cummins.” 44

71. As noted by Joe Loughrey, President and Chief Operating Officer of

Cummins, in accepting the award, “This is a significant product innovation and a

terrific honor for Cummins to be recognized. We share this recognition with our

customer, Chrysler, who collaborated with us in developing a common vision for a

product that would deliver on our commitment to exceptional customer satisfaction

while ensuring our contribution to a cleaner environment.”45

72. “Cummins Inc. today announced a multiyear extension of its current

agreement with Chrysler Group LLC. Cummins will supply 6.7-liter Turbo Diesel

engines for Ram Heavy Duty pickups and Chassis Cab trucks while continuing to

grow its partnership with Chrysler, which began 21 years ago. Cummins has

44

Exhibit 22, Cummins Inc.’s Apr. 15, 2008 Press Release, available at http://investor.cummins.com/phoenix.zhtml?c=112916&p=irol-newsArticle_Print&ID=1129865.

45 Id.


- 33 -

produced over 1.7 million Cummins Turbo Diesel engines for Dodge Ram Heavy

Duty trucks since 1989. Today, over 80 percent of Ram Heavy Duty truck

customers purchase their truck with the legendary Cummins Turbo Diesel.”46

73. “Today’s 6.7-liter Turbo Diesel delivers 350 hp (261 kW) and 650 lb-

ft (881 N-m) of torque. This 118 percent increase in horsepower and 86 percent

increase in torque have been achieved while also reducing exhaust emissions by 90

percent. In 2007, Dodge and Cummins produced the cleanest heavy-duty diesel

pickup in the market by meeting U.S. Environmental Protection Agency (EPA)

2010 emissions levels a full three years in advance.”47

74. “Cummins and Chrysler have a long and important history together,”

said Dave Crompton, Cummins VP and General Manager, Midrange Engine

Business. “The Chrysler business continues to be a key part of our MidRange

engine business. Cummins is proud to supply engines for the award-winning Ram

Heavy Duty and to continue working with Chrysler to develop best-in-class

products that customers can trust and depend on now and in the future.”48

46

Exhibit 23, Cummins Inc.’s Feb. 3, 2010 Press Release, available at http://investor.cummins.com/phoenix.zhtml?c=112916&p=irol-newsArticle&ID=1382531.

47 Id.

48 Id.


- 34 -

FCA 5.

75. After completing two million trucks together, FCA stated that “[t]he

Ram Truck-Cummins diesel partnership is one of the industry’s most enduring and

certainly fitting of such a tribute,” said Fred Diaz, President and CEO, Ram Truck

Brand and Chrysler de Mexico, in the news release. “Both companies have

benefited greatly, but Ram diesel customers are the real beneficiaries. Every day

they experience the toughness and capability a Cummins-powered Ram can

deliver.”49

76. In presenting an environmental award to Cummins, FCA/Chrysler

stated: “Working in a close partnership, Chrysler and Cummins achieved

remarkable results in meeting and exceeding both regulatory requirements and

customer needs. The new Dodge Ram 2500 and 3500 are the first vehicles to

achieve the stringent NOx ‘phase-in’ emission standard in all 50 states, and to do

so three years early. The 6.7-liter Cummins Turbo Diesel maintains fuel efficiency

as compared to the 2006 model. It also maintains the diesel engine’s 30 percent

fuel economy savings over gasoline engines, and thus lower CO2 emissions.”50

49

Exhibit 21. 50

Exhibit 16, Cummins Inc.’s 2007 Sustainability Report at 13.


- 35 -

a. 2008 Brochure for Ram 2500/3500 Trucks

77. “THE CUMMINS® 6.7-LITER TURBO DIESEL. SO GOOD, SO

POWERFUL, AND SO CLEAN IT WARRANTS A CLASS OF ITS OWN—

AND IT’S ONLY IN A DODGE RAM HEAVY DUTY.”51

78. “The most recent example of the world-famous Cummins powerplant

[sic] continues the Cummins history with Dodge Ram—a legacy of pure, driven

truck power taking advantage of an increasingly popular—and today, surprisingly

clean—fuel source.”52

79. “Consider all that Cummins has to offer, and you become part of

history in the making in real time: today, over 1.5 million Cummins equipped

Dodge Rams are powering the roads, farms, and industrial sites of the world. What

can you expect from Cummins in your Ram? Count on diesel-specific efficiency.

Outstanding performance that defines reliability. Longevity that reaches hundreds

of thousands of miles. And durability so impressive, it approaches the

inexhaustible.”53

51

Exhibit 24, 2008 Dodge Ram brochure at 11, available at http://www.auto-brochures.com/makes/ram/Ram_US%20HD_2008.pdf (emphasis in original throughout).

52 Id.

53 Id.


- 36 -

80. “The large piston bowl is another engineering technique used to

ensure good power and clean emissions. In fact, based on full-size diesel pickup

trucks, the Cummins offers the cleanest diesel emissions of any.”54

81. “ADVANCED REQUIREMENTS MET TODAY. The particulate

filter is profoundly effective, and is a major factor in Cummins diesel emissions

reduction Ram 2500 and 3500 pickup models. Reduced emissions are so

important, the 6.7-liter is already able to meet the stringent truck emissions

standards based on future requirements—for the 2010 model year. And it meets

them in all 50 states.”55

b. 2009 Brochure for Ram 2500/3500 Trucks

82. “THE INCREDIBLE CUMMINS 6.7-LITER TURBO DIESEL. SO

POWERFUL, IT DROPS THE COMPETITTION WITH A ONE-TWO-THREE

PUNCH OF 650* LB-FT OF TORQUE, 350 HORSEPOWER, AND SQUEAKY-

CLEAN EMISSIONS.”56

83. “THE CUMMINS® 6.7-LITER TURBO DIESEL: A CLEAN

BREAK FROM OTHER DIESELS. Cummins and Dodge Ram form a team that

results in outstanding reliability. . . . The Cummins 6.7-liter now ranks among the

54

Id. 55

Id. 56

Exhibit 25, 2009 Dodge Ram brochure at 4, available at http://www.auto-brochures.com/makes/ram/Ram_US%20HD_2009.pdf.


- 37 -

cleanest of any full-size pickup diesel engine. Emissions are so low, they currently

meet 2010 emissions regulations.”57

84. “LEAN, MEAN, AND VERY CLEAN. Fewer moving parts than

comparable gas engines reduces complexity—and consequent costs. And this

Cummins is super-clean, making it the cleanest full-size pickup diesel out there.”58

c. 2010 Brochure for Ram 2500/3500 Trucks

85. “THE DRIVING FORCE BEHIND MANY RAM HEAVY

DUTY MODELS: THE SINGULAR 6.7-LITER CUMMINS® TURBO

DIESEL. By any measure, it’s got game. . . . As one of the cleanest, most

powerful, and most respected diesel engines in any commercial pickup, this

remarkable power plant can power significantly larger-class vehicles.”59

d. 2011 Brochure for Ram 2500/3500 Trucks

86. “CUMMINS. THE QUIET AUTHORITY IN CHARGE OF

DIESEL POWER. This is teamwork that just flat-out works. Ram Heavy Duty

pickups and the formidable Cummins Turbo Diesel are a partnership of shared

strengths—for this is a relationship that goes back decades while constantly

looking forward to the next generation of trucks. The Cummins 6.7-liter

workhorse is capable of driving much larger vehicles—part of the reason it works

57

Id. 58

Id. 59



- 38 -

so well in Ram Heavy Duty pickups. Boasting quiet and clean performance, the

Cummins generates between 610 and 650 lb-ft of torque (at only 1,500 rpm) and

350 horsepower, depending on transmission, meeting virtually every need for

towing, hauling, and responsive acceleration.”

87. “The Cummins 6.7-liter Turbo Diesel in Ram Heavy Duty is the only

one in its class to meet all 50-state emissions standards—with no need for DEF—

resulting in impressive savings in time, costs and hassles.”60

88. “FUEL FILTER: A WORKING MODEL OF EFFICIENCY. There

is little doubt that diesel will play an increasingly important role for both truck and

car propulsion. Diesel engines today are a model of cleanliness—in part, due to

the fuel filter. The Cummins Turbo Diesel features a fuel filter with outstanding

efficiency.”61

e. 2012 Brochure for Ram 2500/3500 Trucks

89. “Diesel engines today are a model of cleanliness—in part, due to the

fuel filter. The Cummins Turbo Diesel features a fuel filter with outstanding

efficiency.”62

90. “The 6.7L Cummins® Turbo Diesels. The most formidable

partnership in the working world.”63

60


61 Id.

62 Exhibit 5 at 3.


- 39 -

91. “But the overarching factor that defines and separates Ram Heavy

Duty is value. Like our teamwork with Cummins, whose brilliance gives you a

Turbo Diesel with fewer moving party—translating into the real-world value of

reduced maintenance costs.”64

92. “Since 1988, Cummins and Dodge have collaborated to ship over 1.5

million Heavy Duty diesel pickup trucks and today enjoy around 30 percent market

share in this highly competitive market in North America.”65

93. “The depth of thinking on the part of Cummins is pivotal when put

into the context of their history with Ram. For nearly a quarter of a century, this

partnership benchmarked power, durability, reliability, and economy—and it has

provided an enduring legacy attributed to old-fashioned hard work and truly

innovative engineering. This success is literally history in the making: it’s the

longest collaboration of its kind in the industry—and it will continue.”66

94. Referring to quality control testing: “Long before they work for you,

Ram Heavy Duty prototypes endure conditions unlikely to be encountered in your

life—or lifetime. Grueling durability tests, excessive climate testing, road

simulation shake trials on tracks that resemble mountainous terrains—it’s beyond

63

Id. at 4. 64

Id. at 1. 65

Id. at 6. 66

Id. at 3.


- 40 -

brutal. We measure every number—and we measure up, backing you with one of

the best working warranties in the business.”67

The Worldwide Emissions Scandal 6.

95. As noted, the world was shocked to learn that Volkswagen had

manufactured over 11 million cars that were on the road in violation of European

emissions standards, and over 480,000 vehicles were operating in the United States

in violation of EPA and state standards. But VW was not the only manufacturer of

vehicles that exceeded emissions standards.

96. In May 2015 a study conducted on behalf of the Dutch Ministry of

Infrastructure and the Environment (“TNO Study”) found that all sixteen vehicles

made by a variety of manufacturers, when tested, emitted significantly more NOx

on real world trips while they passed laboratory tests. The report concluded that

“[i]n most circumstances arising in normal situations on the road, the system

scarcely succeeded in any effective reduction of NOx emissions.”

97. In a summary report TNO graphically depicted the widespread failure

of most manufacturers:

In the wake of a major scandal involving Volkswagen and Audi diesel

vehicles evading emissions standards with the help of certain software that

67

Id. at 6.


- 41 -

manipulates emissions controls (called “defeat devices”),68

scientific literature and

reports and testing indicate that most of the diesel car manufactures of so called

Clean Diesel vehicles emit far more pollution on the road than in lab tests. The

EPA has widened its probe of auto emissions to include, for example, the

Mercedes E250 BlueTEC.

68

See Exhibit 28, the EPA’s Notice of Violation (“NOV”) to Volkswagen (Sept. 18, 2015), available at https://www.epa.gov/sites/production/files/2015-10/documents/vw-nov-caa-09-18-15.pdf. As detailed in the EPA’s NOV, software in Volkswagen and Audi diesel vehicles detects when the vehicle is undergoing official emissions testing and turns full emissions controls on only during the test. But otherwise, while the vehicle is running, the emissions controls are suppressed. This results in cars that meet emissions standards in the laboratory or state testing station, but during normal operation emit NOx at up to 40 times the standard allowed under United States laws and regulations. Volkswagen has admitted to installing a defeat device in its diesel vehicles.


- 42 -

98. The TNO report found that the current system for testing cars in a

laboratory produces “meaningless results.”

99. TNO further remarked: “It is remarkable that the NOx emission

under real-world conditions exceeds the type approval value by [so much]. It

demonstrates that the settings of the engine, the EGR and the SCR during a real-

world test trip are such that they do not result in low NOx emissions in practice. In


- 43 -

other words: In most circumstances arising in normal situations on the road, the

systems scarcely succeed in any effective reduction of NOx emissions.” TNO

Report at 6 (emphasis added). The lack of any “effective reduction of NOx

emissions” is a complete contradiction of Defendants’ claim that their vehicles are

clean.

100. Other organizations are beginning to take notice of the emissions

deception. The Transportation and Environment (T&E) organization, a European

group aimed at promoting sustainable transportation, compiled data from

“respected testing authorities around Europe.” T&E stated in September 2015 that

real-world emissions testing showed drastic differences from laboratory tests such

that models tested emitted more pollutants on the road than in their laboratory

tests. “For virtually every new model that comes onto the market the gap between

test and real-world performance leaps,” the report asserts.

101. Emissions Analytics is a U.K. company, which says that it was

formed to “overcome the challenge of finding accurate fuel consumption and

emissions figures for road vehicles.” With regard to its recent on-road emissions

testing, the company explains: “[I]n the European market, we have found that real-

world emissions of the regulated nitrogen oxides are four times above the official

level, determined in the laboratory. Real-world emissions of carbon dioxide are

almost one-third above that suggested by official figures. For car buyers, this


- 44 -

means that fuel economy on average is one quarter worse than advertised. This

matters, even if no illegal activity is found.”

The Defendants’ Emissions Deception 7.

102. The Affected Vehicles contain a sophisticated NOx reduction after-

treatment technology called a NOx adsorber. This technology is intended to

reduce oxides of nitrogen (NOx) contained in the exhaust of the engine to levels

sufficient to allow the vehicle to meet State and Federal emission certification

requirements.

103. The NOx adsorber is a catalytic device that operates in two distinct

modes: 1) NOx adsorption mode; and 2) NOx regeneration/reduction mode.

During adsorption mode, NOx present in the diesel exhaust from the engine

chemically binds to the surface of the NOx adsorber catalyst, effectively trapping

or storing the NOx. However, the NOx adsorber has a limited capacity for storing

NOx, and once the system is saturated (i.e., full), it must be regenerated. A NOx

sensor monitors the NOx levels coming out of the adsorber and can detect when

NOx adsorber system has reached its capacity.

104. Once it is determined that the NOx adsorber is at or near saturation,

the engine control system switches to a “regeneration mode.” In this mode, the

engine is operated in a fuel rich mode, eliminating excess oxygen and increasing

levels of hydrocarbon from unburned fuel. In the absence of oxygen the


- 45 -

hydrocarbons react with the NOx in a “reduction” reaction to desorb the NOx and

convert it to harmless nitrogen, oxygen, water, and carbon dioxide.

105. The NOx sensors and other engine and exhaust system sensors feed

information to the engine control unit (ECU). Complex algorithms and control

strategies coded in the ECU monitor the status of the adsorber system. When the

need for a regeneration is detected, the ECU manages and adjusts operational

parameters to switch from adsorption mode to regeneration/reduction mode.

106. The system is further complicated by the fact that a diesel particulate

filter (DPF) system used to trap and oxidize particulate matter (aka soot) must also

be monitored and controlled in a similar fashion, but usually at a different

frequency of occurrence.

107. Testing was performed on a 2012 Dodge Ram 2500 powered by a

Cummins 6.7 diesel engine using a portable emission measurement system

(PEMS). The vehicle had accumulated approximately 70,000 miles at the time of

testing. The results show the vehicle does not meet the relevant emission

standards, as follows: During on-road testing designed to simulate the driving

profile of the Federal Test Procedure (FTP) certification cycle, emissions were

found to be 702 mg/mile on average, 3.5 times the federal and California standard

of 200 mg/mile. Over significant distances, emissions were found to be as high as

1,100 to 2,800 mg/mile for periods lasting as long as 21% of the total drive time.


- 46 -

That is 5.5 to 14 times the relevant standard. During on-road PEMS testing

designed to simulate the driving profile of the Highway certification cycle, average

emissions were found to be 756 mg/mile, or 1.9 times the California (and Section

177 state) standard. Over significant distances, emissions were found to be as high

as 1,200 to 2,250 mg/mile for periods lasting as long as 16% of the total drive time.

That equates to 3.0 to 5.6 times the relevant standard.

108. The vehicle was also found to be particularly sensitive to hills, where

steady speed emissions could spike as high as 2,100 mg/mile (5.5 times the

standard) on a steady 1.5% grade.

109. The excess emissions are believed to result from excessive DPF active

regeneration in combination with deactivated NOx adsorber catalyst. The need for

excessive DPF regeneration events and lower overall activity of the NOx adsorber

catalyst also lead to increased fuel consumption and shortened engine component

life.

110. Furthermore, the need for frequent regenerations was measured to

reduce the overall fuel economy of the vehicle by 3-4%.

111. In addition, the Cummins engine certification required on-board

diagnostics that must be able to monitor NOx levels. If the NOx levels exceed

certain limits service lights and potential engine derate strategies are to be

deployed to motivate the operator to have the vehicle inspected and/or serviced.


- 47 -

At no time during the testing were any diagnostic indicators or engine derating

observed.

112. These test results are consistent with those found by researchers who

prepared the “CAFEE Report” that led to the uncovering of the Volkswagen

scandal. There researchers from West Virginia University studied the emissions

performance of a NOx adsorber-equipped passenger car during DPF regeneration.

Testing revealed that during regeneration events there was an increase in NOx

emissions by 97%. The authors also found particulate matter was found to exceed

the European standards during DPF regeneration events by two to three orders of

magnitude.69

The Environmental Damage 8.

113. NOx contributes to ground-level ozone and fine particulate matter.

According to the EPA, “Exposure to these pollutants has been linked with a range

of serious health effects, including increased asthma attacks and other respiratory

illnesses that can be serious enough to send people to the hospital. Exposure to

ozone and particulate matter have also been associated with premature death due to

respiratory-related or cardiovascular-related effects. Children, the elderly, and

69

Exhibit 29, CAFEE Final Report (May 15, 2014) at 107-08, available at http://www.theicct.org/sites/default/files/publications/WVU_LDDV_in-use_ICCT_Report_Final_may2014.pdf.


- 48 -

people with pre-existing respiratory disease are particularly at risk for health

effects of these pollutants.”

114. The EPA describes the danger of NOx as follows:


- 49 -


- 50 -

115. On September 19, 2015, scientists at Northwest University Feinberg

School of Medicine and Columbia University’s Mailman School of Public Health

released a study indicating that the elevated emissions from the non-compliant VW

vehicles could lead to as many as 50 premature deaths, 3,000 lost workdays and

$423 million in economic costs.

Plaintiffs’ and Class Members’ Economic Damage 9.

116. As a result of FCA’s and Cummins’ unfair, deceptive, and/or

fraudulent business practices, and their failure to disclose that under normal

operating conditions the Affected Vehicles are not “clean” diesels, emit more


- 51 -

pollutants than do gasoline-powered vehicles, and emit more pollutants than

permitted under federal and state laws, and failure to disclose that the Affected

Vehicles do not meet and maintain the advertised fuel efficiency, owners and/or

lessees of the Affected Vehicles have suffered losses in money and/or property.

Had Plaintiffs and Class members known of the higher emissions at the time they

purchased or leased their Affected Vehicles, they would not have purchased or

leased those vehicles, or would have paid substantially less for the vehicles than

they did. Moreover, when and if FCA recalls the Affected Vehicles and degrades

the diesel engine performance and fuel efficiency in order to make the Affected

Vehicles compliant with EPA standards, Plaintiffs and Class members will be

required to spend additional sums on fuel and will not obtain the performance

characteristics of their vehicles when purchased. Moreover, Affected Vehicles will

necessarily be worth less in the marketplace because of their decrease in

performance and efficiency and increased wear on their cars’ engines.

TOLLING OF THE STATUTE OF LIMITATIONS IV.

A. Discovery Rule Tolling

117. Class members had no way of knowing about the Defendants’

deception with respect to the comparatively and unlawfully high emissions of the

Adsorber Engine in Affected Vehicles.


- 52 -

118. Within the time period of any applicable statutes of limitation,

Plaintiffs and members of the proposed classes could not have discovered through

the exercise of reasonable diligence that the Defendants were concealing the

conduct complained of herein and misrepresenting the companies’ true position

with respect to the emission qualities of the Affected Vehicles.

119. Plaintiffs and the other Class members did not discover, and did not

know of, facts that would have caused a reasonable person to suspect that the

Defendants did not report information within their knowledge to federal and state

authorities, the dealerships, or consumers; nor would a reasonable and diligent

investigation have disclosed that the Defendants had concealed information about

the true emissions of the Affected Vehicles, which was discovered by Plaintiffs

only shortly before this action was filed. Nor, in any event, would such an

investigation on the part of Plaintiffs and other Class members have disclosed that

the Defendants valued profits over truthful marketing and compliance with law.

120. For these reasons, all applicable statutes of limitation have been tolled

by operation of the discovery rule with respect to claims as to the Affected

Vehicles.


- 53 -

B. Fraudulent Concealment Tolling

121. All applicable statutes of limitation have also been tolled by the

Defendants’ knowing and active fraudulent concealment and denial of the facts

alleged herein throughout the time period relevant to this action.

122. Instead of disclosing their emissions scheme, the fact that the quality

and quantity of emissions from the Affected Vehicles were far worse than

represented, and their disregard of law, the Defendants falsely represented that the

Affected Vehicles had emissions cleaner than their gasoline-powered counterparts,

complied with federal and state emissions standards, that the diesel engines were

“Clean,” and that they were reputable manufacturers whose representation could be

trusted.

C. Estoppel

123. The Defendants were under a continuous duty to disclose to Plaintiffs

and the other Class members the true character, quality, and nature of emissions

from the Affected Vehicles, and of those vehicles’ emissions systems.

124. The Defendants knowingly, affirmatively, and actively concealed or

recklessly disregarded the true nature, quality, and character of the emissions

systems, and the emissions, of the Affected Vehicles.

125. Based on the foregoing, the Defendants are estopped from relying on

any statutes of limitations in defense of this action.


- 54 -

CLASS ALLEGATIONS V.

126. Plaintiffs bring this action on behalf of themselves and as a class

action, pursuant to the provisions of Rules 23(a) and (b)(3) of the Federal Rules of

Civil Procedure, on behalf of the following class and subclasses (collectively, the

“Classes”):

The Nationwide Class

All persons or entities in the United States who owned and or leased an

“Affected Vehicle” as of November 1, 2016. Affected Vehicles include,

without limitation, the 2007–2010 Dodge Ram 2500 with Cummins diesel

(2WD, 4WD), the 2011–2012 Dodge Ram 2500 with Cummins diesel (non-

SCR systems, 2WD, 4WD), the 2007–2010 Dodge Ram 3500 with

Cummins diesel (2WD, 4WD), and the 2011–2012 Dodge Ram 3500 with

Cummins diesel (non-SCR systems, 2WD, 4WD).

The Alabama Subclass

All persons or entities in the state of Alabama who owned and/or leased an

Affected Vehicle as of November 1, 2016.

The Alaska Subclass

All persons or entities in the state of Alaska who owned and/or leased an


The Arizona Subclass

All persons or entities in the state of Arizona who owned and/or leased an


The Arkansas Subclass

All persons or entities in the state of Arkansas who owned and/or leased an



- 55 -

The California Subclass

All persons or entities in the state of California who owned and/or leased an


The Colorado Subclass

All persons or entities in the state of Colorado who owned and/or leased an


The Connecticut Subclass

All persons or entities in the state of Connecticut who owned and/or leased

an Affected Vehicle as of November 1, 2016.

The District of Columbia Subclass

All persons or entities in the District of Columbia who owned and/or leased


The Delaware Subclass

All persons or entities in the state of Delaware who owned and/or leased an


The Florida Subclass

All persons or entities in the state of Florida who owned and/or leased an


The Georgia Subclass

All persons or entities in the state of Georgia who owned and/or leased an


The Hawaii Subclass

All persons or entities in the state of Hawaii who owned and/or leased an


The Idaho Subclass

All persons or entities in the state of Idaho who owned and/or leased an



- 56 -

The Illinois Subclass

All persons or entities in the state of Illinois who owned and/or leased an


The Kansas Subclass

All persons or entities in the state of Kansas who owned and/or leased an


The Kentucky Subclass

All persons or entities in the state of Kentucky who owned and/or leased an


The Louisiana Subclass

All persons or entities in the state of Louisiana who owned and/or leased an


The Maine Subclass

All persons or entities in the state of Maine who owned and/or leased an


The Maryland Subclass

All persons or entities in the state of Maryland who owned and/or leased an


The Massachusetts Subclass

All persons or entities in the state of Massachusetts who owned and/or

leased an Affected Vehicle as of November 1, 2016.

The Michigan Subclass

All persons or entities in the state of Michigan who owned and/or leased an


The Minnesota Subclass

All persons or entities in the state of Minnesota who owned and/or leased an



- 57 -

The Missouri Subclass

All persons or entities in the state of Missouri who owned and/or leased an


The Montana Subclass

All persons or entities in the state of Montana who owned and/or leased an


The Nebraska Subclass

All persons or entities in the state of Nebraska who owned and/or leased an


The Nevada Subclass

All persons or entities in the state of Nevada who owned and/or leased an


The New Hampshire Subclass

All persons or entities in the state of New Hampshire who owned and/or


The New Jersey Subclass

All persons or entities in the state of New Jersey who owned and/or leased


The New Mexico Subclass

All persons or entities in the state of New Mexico who owned and/or leased


The New York Subclass

All persons or entities in the state of New York who owned and/or leased an


The North Carolina Subclass

All persons or entities in the state of North Carolina who owned and/or



- 58 -

The North Dakota Subclass

All persons or entities in the state of North Dakota who owned and/or leased


The Ohio Subclass

All persons or entities in the state of Ohio who owned and/or leased an


The Oklahoma Subclass

All persons or entities in the state of Oklahoma who owned and/or leased an


The Pennsylvania Subclass

All persons or entities in the state of Pennsylvania who owned and/or leased


The Rhode Island Subclass

All persons or entities in the state of Rhode Island who owned and/or leased


The South Carolina Subclass

All persons or entities in the state of South Carolina who owned and/or


The Tennessee Subclass

All persons or entities in the state of Tennessee who owned and/or leased an


The Texas Subclass

All persons or entities in the state of Texas who owned and/or leased an


The Utah Subclass

All persons or entities in the state of Utah who owned and/or leased an



- 59 -

The Vermont Subclass

All persons or entities in the state of Vermont who owned and/or leased an


The Virginia Subclass

All persons or entities in the state of Virginia who owned and/or leased an


The Washington Subclass

All persons or entities in the state of Washington who owned and/or leased


The West Virginia Subclass

All persons or entities in the state of West Virginia who owned and/or leased


The Wisconsin Subclass

All persons or entities in the state of Wisconsin who owned and/or leased an


127. Excluded from the Class are individuals who have personal injury

claims resulting from the high emissions in the Affected Vehicles. Also excluded

from the Class are the Defendants and their subsidiaries and affiliates; all persons

who make a timely election to be excluded from the Class; governmental entities;

and the Judge to whom this case is assigned and his/her immediate family.

Plaintiffs reserve the right to revise the Class definition based upon information

learned through discovery.

128. Certification of Plaintiffs’ claims for classwide treatment is

appropriate because Plaintiffs can prove the elements of their claims on a


- 60 -

classwide basis using the same evidence as would be used to prove those elements

in individual actions alleging the same claim.

129. This action has been brought and may be properly maintained on

behalf of each of the Classes proposed herein under Federal Rule of Civil

Procedure 23.

130. Numerosity. Federal Rule of Civil Procedure 23(a)(1): The

members of the Classes are so numerous and geographically dispersed that

individual joinder of all Class members is impracticable. While Plaintiffs are

informed and believe that there are hundreds of thousands of members of the

Class, the precise number of Class members is unknown to Plaintiffs, but may be

ascertained from the Defendants’ books and records. Class members may be

notified of the pendency of this action by recognized, Court-approved notice

dissemination methods, which may include U.S. Mail, electronic mail, Internet

postings, and/or published notice.

131. Commonality and Predominance: Federal Rule of Civil Procedure

23(a)(2) & (b)(3): This action involves common questions of law and fact, which

predominate over any questions affecting individual Class members, including,

without limitation:

a. Whether the Defendants engaged in the conduct alleged herein;


- 61 -

b. Whether the Defendants designed, advertised, marketed, distributed,

leased, sold, or otherwise placed Affected Vehicles into the stream of

commerce in the United States;

c. Whether the Adsorber Engine in the Affected Vehicles emit pollutants

at levels that do not make them “clean” diesels and that do not comply

with U.S. EPA requirements;

d. Whether the Defendants knew about the comparatively and

unlawfully high emissions and, if so, how long the Defendants have

known;

e. Whether the Defendants designed, manufactured, marketed, and

distributed Affected Vehicles with defective or otherwise inadequate

emission controls;

f. Whether the Defendants’ conduct violates consumer protection

statutes and constitutes breach of contract and fraudulent concealment

as asserted herein;

g. Whether Plaintiffs and the other Class members overpaid for their

Affected Vehicles; and

h. Whether Plaintiffs and the other Class members are entitled to

damages and other monetary relief and, if so, in what amount.


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132. Typicality: Federal Rule of Civil Procedure 23(a)(3): Plaintiffs’

claims are typical of the other Class members’ claims because, among other things,

all Class members were comparably injured through the Defendants’ wrongful

conduct as described above.

133. Adequacy: Federal Rule of Civil Procedure 23(a)(4): Plaintiffs are

adequate Class representatives because their interests do not conflict with the

interests of the other members of the Classes they seek to represent; Plaintiffs have

retained counsel competent and experienced in complex class action litigation; and

Plaintiffs intend to prosecute this action vigorously. The Classes’ interests will be

fairly and adequately protected by Plaintiffs and their counsel.

134. Declaratory Relief: Federal Rule of Civil Procedure 23(b)(2): the

Defendants have acted or refused to act on grounds generally applicable to

Plaintiffs and the other members of the Classes, thereby making appropriate

declaratory relief, with respect to each Class as a whole.

135. Superiority: Federal Rule of Civil Procedure 23(b)(3): A class

action is superior to any other available means for the fair and efficient

adjudication of this controversy, and no unusual difficulties are likely to be

encountered in the management of this class action. The damages or other

financial detriment suffered by Plaintiffs and the other Class members are

relatively small compared to the burden and expense that would be required to


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individually litigate their claims against the Defendants, so it would be

impracticable for the members of the Classes to individually seek redress for the

Defendants’ wrongful conduct. Even if Class members could afford individual

litigation, the court system could not. Individualized litigation creates a potential

for inconsistent or contradictory judgments, and increases the delay and expense to

all parties and the court system. By contrast, the class action device presents far

fewer management difficulties, and provides the benefits of single adjudication,

economy of scale, and comprehensive supervision by a single court.

A. Claims Brought on Behalf of the Nationwide Class

COUNT I:

VIOLATION OF 18 U.S.C. § 1962(C)–(D):

THE RACKETEER INFLUENCED AND CORRUPT

ORGANIZATIONS ACT (“RICO”)

136. Plaintiffs incorporate by reference each preceding paragraph as

though fully set forth herein.

137. Plaintiffs bring this Count on behalf of the Nationwide Class against

FCA US LLC (“FCA”) and Cummins Inc. (inclusively, for purpose of this Count,

the “RICO Defendants”).

138. At all relevant times, the RICO Defendants have been “persons”

under 18 U.S.C. § 1961(3) because they are capable of holding, and do hold, a

“legal or beneficial interest in property.”


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139. 18 U.S.C. § 1962(c) makes it “unlawful for any person employed by

or associated with any enterprise engaged in, or the activities of which affect,

interstate or foreign commerce, to conduct or participate, directly or indirectly, in

the conduct of such enterprise’s affairs through a pattern of racketeering activity.”

140. 18 U.S.C. § 1962(d), among other provisions, makes it unlawful for

“any person to conspire to violate” See 18 U.S.C. § 1962(d).

141. By their own admission, the RICO Defendants moved aggressively to

capture a large portion of the “clean” diesel truck market. In so doing, they created

a product that fell far short of the promises the RICO Defendants made about the

product. In particular, the RICO Defendants, along with other entities and

individuals, were employed by or associated with, and conducted or participated in

the affairs of, one or several RICO enterprises (the “Emission Fraud Enterprise”),

whose purpose was to deceive regulators and the driving public into believing that

the Class Vehicles were complaint with emissions standards, “clean,” and

“environmentally friendly” so as to increase revenues and minimize losses from

the design, manufacture, distribution, and sale of the Class Vehicles and the

defective catalyst devices installed therein. As a direct and proximate result of

their fraudulent scheme and common course of conduct, Defendants were able to

extract revenues of billions of dollars from Plaintiffs and the Class. As explained


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in detail below, the RICO Defendants’ years-long misconduct violated 18 U.S.C.

§§ 1962(c) & (d).

The Emission Fraud Enterprise 1.

142. At all relevant times, the RICO Defendants, along with other

individuals and entities, including unknown third parties involved in the design,

manufacture, testing, and sale of the Affected Vehicles, operated an association-in-

fact enterprise engaged in interstate and foreign commerce, which was formed for

the purpose of obtaining EPA Certificates of Conformity (“COCs”), as well as

California Air Resources Board (“CARB”) Executive Orders (“EOs”), in order to

sell the Affected Vehicles containing the defective device throughout the United

States, and through which they conducted a pattern of racketeering activity under

18 U.S.C. § 1961(4).

143. Alternatively, each of the RICO Defendants constitutes a single legal

entity “enterprise” within the meaning of 18 U.S.C. § 1961(4), through which the

RICO Defendants conducted their pattern of racketeering activity in the U.S. In

particular, FCA designed, manufactured, and sold the Affected Vehicles, and FCA

obtained the COCs and the EOs through material misrepresentations and omissions

in order to introduce the Affected Vehicles into the U.S. Stream of Commerce.

Cummins participated directly or indirectly in the enterprise by developing,

supplying, and promoting the Adsorber Engine.


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144. At all relevant times, the Emissions Fraud Enterprise: (a) had an

existence separate and distinct from each Defendant; (b) was separate and distinct

from the pattern of racketeering in which the RICO Defendants engaged; and (c)

was an ongoing organization consisting of legal entities, including FCA and

Cummins, and other entities and individuals associated for the common purpose of

designing, manufacturing, distributing, testing, and selling the Affected Vehicles

through fraudulent COCs and EOs, false emissions tests, deceptive and misleading

marketing and materials, and deriving profits and revenues from those activities.

Each member of the Emissions Fraud Enterprise shared in the bounty generated by

the enterprise, i.e., by sharing the benefit derived from increased sales revenue

generated by the scheme to defraud consumers and franchise dealers alike

nationwide, and sharing the benefit of earning emissions “credits” as described

herein.

145. The Emissions Fraud Enterprise functioned by selling vehicles and

component parts to the consuming public. Many of these products are legitimate,

including vehicles that do not contain defeat devices. However, the RICO

Defendants and their co-conspirators, through their illegal Emissions Fraud

Enterprise, engaged in a pattern of racketeering activity, which involves a

fraudulent scheme to increase revenue for Defendants and the other entities and


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individuals associated-in-fact with the Enterprise’s activities through the illegal

scheme to sell the Affected Vehicles.

146. The Emissions Fraud Enterprise engaged in, and its activities affected,

interstate and foreign commerce, because it involved commercial activities across

state boundaries, such as the marketing, promotion, advertisement, and sale or

lease of the Affected Vehicles throughout the country, and the receipt of monies

from the sale of the same.

147. Within the Emissions Fraud Enterprise, there was a common

communication network by which co-conspirators shared information on a regular

basis. The Emissions Fraud Enterprise used this common communication network

for the purpose of manufacturing, marketing, testing, and selling the Affected

Vehicles to the general public nationwide.

148. Each participant in the Emissions Fraud Enterprise had a systematic

linkage to each other through corporate ties, contractual relationships, financial

ties, and continuing coordination of activities. Through the Emissions Fraud

Enterprise, the RICO Defendants functioned as a continuing unit with the purpose

of furthering the illegal scheme and their common purposes of increasing their

revenues and market share, and minimizing losses.

149. The RICO Defendants participated in the operation and management

of the Emissions Fraud Enterprise by directing its affairs, as described herein.


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While the RICO Defendants participated in, and are members of, the enterprise,

they have a separate existence from the enterprise, including distinct legal statuses,

different offices and roles, bank accounts, officers, directors, employees, individual

personhood, reporting requirements, and financial statements.

150. As detailed above, each RICO Defendant also relentlessly promoted

the Affected Vehicles as clean, powerful, and cost-efficient. The Defendants

routinely proclaimed the Affected Vehicles, and the Adsorber Engine, as the

“cleanest” in its class, “meeting and exceeding both regulatory requirements and

customer needs.” The Affected Vehicles were “squeaky clean”; “super clean”; “a

model of cleanliness”—“so clean it warrants a class of its own,” and “durability so

impressive, it approaches the inexhaustible.” All of this success is due to the tight

collaboration among the RICO Defendants—what Cummins called the “most

formidable partnership in the working world.”

151. The Enterprise functioned by selling Affected Vehicles, with the

Adsorber Engine, to the public. The RICO Defendants engaged in a pattern of

racketing activity through their scheme to increase revenue and profits for the

RICO Defendants to sell the Affected Vehicles in interstate and foreign commerce,

and to increase the emissions credits they earned, thereby allowing them to sell

dirty vehicles as well, all for an additional profit. The enterprise involved

commercial activities across state boundaries, such as the marketing, promotion,


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advertisement, and sale or lease of the Affected Vehicles throughout the country,

and the receipt of monies from the sale of the same.

152. The RICO Defendants worked closely together to further the

enterprise, by and among the following manner and means:

a. Jointly planning to manufacture a diesel engine and truck that would

purportedly meet EPA and California emissions standards three years

early;

b. Designing the Affected Vehicles with the Adsorber Engines;

Manufacturing, distributing, and selling the Class Vehicles that

emitted greater pollution than permitted under the applicable

regulations;

c. Misrepresenting and omitting (or causing such misrepresentations and

omissions to be made) vehicle specifications on COC and EO

applications;

d. Introducing the Affected Vehicles into the stream of U.S. commerce

without a valid COC and/or EO;

e. Concealing the unlawfully high emissions from regulators and the

public;

f. Misleading the public about the defects in the Affected Vehicles and

the Adsorber Engine;


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g. Otherwise misrepresenting or concealing the defective nature of the

Affected Vehicles from the public and regulators;

h. Illegally selling and/or distributing the Class Vehicles;

i. Designing, testing, and installing the Adsorber Engine into the

Affected Vehicles; and

j. Collecting revenues and profits from the sale of such products,

including the Affected Vehicles and the Adsorber Engines.

Mail and Wire Fraud 2.

153. To carry out, and attempt to carry out, the scheme to defraud, the

RICO Defendants, each of whom is a person associated in fact with the enterprise,

did knowingly conduct and participate, directly and indirectly, in the conduct of

the affairs of the enterprise through a pattern of racketeering activity within the

meaning of 18 U.S.C. §§ 1961(1), 1961(5) , & 1962(c), and which employed the

use of the mail and wire facilities, in violation of 18 U.S.C. §§ 1341 (mail fraud) &

1343 (wire fraud).

154. Specifically, the RICO Defendants have committed, conspired to

commit, and/or aided and abetted in the commission of, at least two predicate acts

of racketeering activity (i.e., violations of 18 U.S.C. §§ 1341 & 1343), within the

past ten years. The multiple acts of racketeering activity which the RICO

Defendants committed, or aided or abetted in the commission of, were related to


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each other, posed a threat of continued racketeering activity, and therefore

constitute a “pattern of racketeering activity.” The racketeering activity was made

possible by the RICO Defendants’ regular use of the facilities, services,

distribution channels, and employees of the enterprise. The RICO Defendants

participated in the scheme to defraud by using mail, telephone, and the Internet to

transmit mailings and wires in interstate or foreign commerce.

155. In devising and executing the illegal scheme, the RICO Defendants

devised and knowingly carried out a material scheme and/or artifice to defraud

Plaintiffs and the Nationwide Class or to obtain money from Plaintiffs and the

Nationwide Class by means of materially false or fraudulent pretenses,

representations, promises, or omissions of material facts. For the purpose of

executing the illegal scheme, the RICO Defendants committed these racketeering

acts intentionally and knowingly with the specific intent to advance the illegal

scheme.

156. The RICO Defendants’ predicate acts of racketeering, 18 U.S.C.

§ 1961(1), include but are not limited to:

a. Mail Fraud: The RICO Defendants violated 18 U.S.C. § 1341 by

sending and receiving, and by causing to be sent and/or received, materials via

U.S. Mail or commercial interstate carriers for the purpose of executing the


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unlawful scheme to design, manufacture, market, and sell the Class Vehicles by

means of false pretenses, misrepresentations, promises, and omissions.

b. Wire Fraud: The RICO Defendants violated 18 U.S.C. § 1343 by

transmitting and/or receiving, and by causing to be transmitted and/or received,

materials by wire for the purpose of executing the unlawful scheme to defraud and

obtain money on false pretenses, misrepresentations, promises, and omissions.

157. The RICO Defendants’ use of the mails and wires include, but are not

limited to, the transmission, delivery and shipment of the following by the RICO

Defendants or third parties that were foreseeably caused to be sent as a result of

Defendants’ illegal scheme:

a. Application for certificates submitted to the EPA and CARB and

Approved Applications received in the mail on April 9, 2008, June 23,

2008, June 6, 2008, and July 2, 2008.

b. Applications submitted to the EPA and CARB for each model year as

follows:

2007–2010 Dodge Ram 2500 with Cummins diesel

(2WD, 4WD);


(non-SCR systems, 2WD, 4WD);


(2WD, 4WD); and


(non-SCR systems, 2WD, 4WD).

c. The Affected Vehicles.

d. The Adsorber Engines.


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e. The essential hardware for the Affected Vehicles.

f. False and misleading emissions tests.

g. Additional fraudulent applications for COCs and EOs.

h. Fraudulently obtained COCs and EOs.

i. Vehicle registrations and plates as a result of the fraudulently obtained

EPA COCs and EOs.

j. False or misleading communications to the public and to regulators.

k. Sales and marketing materials, including advertising, websites,

product packaging, brochures, and labeling, which misrepresented,

falsely promoted, and concealed the true nature of the Affected

Vehicles.

l. Documents intended to facilitate the manufacture and sale of the

Affected Vehicles, including bills of lading, invoices, shipping

records, reports and correspondence.

m. Documents to process and receive payment for the Class Vehicles by

unsuspecting Class members, including invoices and receipts.

n. Payments to Cummins.

o. Deposits of proceeds.

p. Other documents and things, including electronic communications.

158. The RICO Defendants also used the internet and other electronic

facilities to carry out the scheme and conceal the ongoing fraudulent activities.

Specifically, the RICO Defendants made misrepresentations about the Class

Vehicles on their websites, YouTube, and through ads online, all of which were

intended to mislead regulators and the public about the fuel efficiency, emissions

standards, and other performance metrics.


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159. The RICO Defendants also communicated by U.S. Mail, by interstate

facsimile, and by interstate electronic mail with various other affiliates, regional

offices, divisions, dealerships and other third-party entities in furtherance of the

scheme.

160. The mail and wire transmissions described herein were made in

furtherance of Defendants’ scheme and common course of conduct to deceive

regulators and consumers and lure consumers into purchasing the Class Vehicles,

which Defendants knew or recklessly disregarded as emitting illegal amounts of

pollution, despite their advertising campaign that the Class Vehicles were “clean”

diesel cars.

161. Many of the precise dates of the fraudulent uses of the U.S. Mail and

interstate wire facilities are hidden to the Plaintiffs, and cannot be alleged without

access to Defendants’ books and records. However, Plaintiffs have described the

types of predicate acts of mail and/or wire fraud that occurred.

162. The RICO Defendants have not undertaken the practices described

herein in isolation, but as part of a common scheme and conspiracy. In violation of

18 U.S.C. § 1962(d), the RICO Defendants conspired to violate 18 U.S.C.

§ 1962(c), as described herein. Various other persons, firms and corporations,

including third-party entities and individuals not named as defendants in this

Complaint, have participated as co-conspirators with the RICO Defendants in these


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offenses and have performed acts in furtherance of the conspiracy to increase or

maintain revenues, increase market share, and/or minimize losses for the

Defendants and their unnamed co-conspirators throughout the illegal scheme and

common course of conduct.

163. The RICO Defendants aided and abetted others in the violations of the

above laws, thereby rendering them indictable as principals in the 18 U.S.C.

§§ 1341 & 1343 offenses.

164. To achieve their common goals, the RICO Defendants hid from the

general public the unlawfulness and emission dangers of the Class Vehicles and

obfuscated the true nature of the defect even after regulators raised concerns. The

RICO Defendants suppressed and/or ignored warnings from third parties,

whistleblowers, and governmental entities about the discrepancies in emissions

testing and the defeat devices present in the Affected Vehicles.

165. The RICO Defendants and each member of the conspiracy, with

knowledge and intent, have agreed to the overall objectives of the conspiracy and

participated in the common course of conduct to commit acts of fraud and

indecency in designing, manufacturing, distributing, marketing, testing, and/or

selling the Class Vehicles (and the defeat devices contained therein).

166. Indeed, for the conspiracy to succeed each of the RICO Defendants

and their coconspirators had to agree to implement and use the similar devices and


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fraudulent tactics—specifically complete secrecy about the defeat devices in the

Affected Vehicles.

167. The RICO Defendants knew and intended that government regulators,

as well as Plaintiffs and Class members, would rely on the material misrepresent-

ations and omissions made by them about the Affected Vehicles. The RICO

Defendants knew and intended that consumers would incur costs as a result.

168. As fully alleged herein, Plaintiffs, along with hundreds of thousands

of other consumers, relied upon Defendants’ representations and omissions that

were made or caused by them. Plaintiffs’ reliance is made obvious by the fact that

they purchased illegal vehicles that never should have been introduced into the

U.S. stream of commerce and whose worth has now plummeted since the scheme

was revealed. In addition, the EPA, CARB, and other regulators relied on the

misrepresentations and material omissions made or caused to be made by the

RICO Defendants; otherwise FCA could not have obtained valid COCs and EOs to

sell the Class Vehicles.

169. As described herein, the RICO Defendants engaged in a pattern of

related and continuous predicate acts for years. The predicate acts constituted a

variety of unlawful activities, each conducted with the common purpose of

obtaining significant monies and revenues from Plaintiffs and Class members

based on their misrepresentations and omissions, while providing Class Vehicles


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that were worth significantly less than the purchase price paid. The predicate acts

also had the same or similar results, participants, victims, and methods of

commission. The predicate acts were related and not isolated events.

170. The predicate acts all had the purpose of generating significant

revenue and profits for the RICO Defendants at the expense of Plaintiffs and Class

members. The predicate acts were committed or caused to be committed by the

RICO Defendants through their participation in the enterprise and in furtherance of

their fraudulent scheme, and were interrelated in that they involved obtaining

Plaintiffs’ and Class members’ funds and avoiding the expenses associated with

remediating the Affected Vehicles.

171. By reason of, and as a result of the conduct of the RICO Defendants,

and in particular, their pattern of racketeering activity, Plaintiffs and Class

members have been injured in their business and/or property in multiple ways,

including but not limited to:

a. Purchase or lease of an illegal, defective Class Vehicle;

b. Overpayment for an Affected Vehicle, in that Plaintiffs and Class

members believed they were paying for a vehicle that met certain emission and

fuel efficiency standards and obtained a vehicle that was anything but;

c. The value of the Class Vehicles has diminished, thus reducing their

resale value;


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d. Other out-of-pocket and loss-of-use expenses; and

e. Payment for alternative transportation.

172. The RICO Defendants’ violations of 18 U.S.C. § 1962(c) & (d) have

directly and proximately caused injuries and damages to Plaintiffs and Class

members, and Plaintiffs and Class members are entitled to bring this action for

three times their actual damages, as well as injunctive/equitable relief, costs, and

reasonable attorneys’ fees pursuant to 18 U.S.C. § 1964(c).

COUNT II:

VIOLATIONS OF 15 U.S.C. § 2301 ET SEQ.

THE MAGNUSON-MOSS WARRANTY ACT (“MMWA”)

173. Plaintiffs reallege and incorporate by reference all paragraphs as


174. This claim is brought on behalf of the Nationwide Class.

175. Plaintiffs are “consumers” within the meaning of the Magnuson-Moss

Warranty Act, 15 U.S.C. § 2301(3).

176. FCA is a “supplier” and “warrantor” within the meaning of the

Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(4)–(5).

177. The Affected Vehicles are “consumer products” within the meaning

of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(1).


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178. 15 U.S.C. § 2301(d)(1) provides a cause of action for any consumer

who is damaged by the failure of a warrantor to comply with a written or implied

warranty.

179. FCA’s express warranties are written warranties within the meaning

of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(6). The Affected

Vehicles’ implied warranties are covered under 15 U.S.C. § 2301(7).

180. FCA breached these warranties, as described in more detail above.

Without limitation, the Affected Vehicles are equipped with a defective Adsorber

Engine that breaks down and releases emissions far in excess of U.S. and

California regulations. The Affected Vehicles share a common design defect in

that the Adsorber Engine fails to operate as represented by FCA.

181. Plaintiffs and the other Class members have had sufficient direct

dealings with either FCA or its agents (e.g., dealerships and technical support) to

establish privity of contract between FCA on one hand, and Plaintiffs and each of

the other Class members on the other hand. Nonetheless, privity is not required

here because Plaintiffs and each of the other Class members are intended third-

party beneficiaries of contracts between FCA and its dealers, and specifically, of

FCA’s implied warranties. The dealers were not intended to be the ultimate

consumers of the Affected Vehicles and have no rights under the warranty


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agreements provided with the Affected Vehicles; the warranty agreements were

designed for and intended to benefit the consumers only.

182. Affording FCA a reasonable opportunity to cure its breach of written

warranties would be unnecessary and futile here.

183. At the time of sale or lease of each Affected Vehicle, FCA knew,

should have known, or was reckless in not knowing of its misrepresentations and

omissions concerning the Affected Vehicles’ inability to perform as warranted, but

nonetheless failed to rectify the situation and/or disclose the defective design.

Under the circumstances, the remedies available under any informal settlement

procedure would be inadequate and any requirement that Plaintiffs resort to an

informal dispute resolution procedure and/or afford FCA a reasonable opportunity

to cure its breach of warranties is excused and thereby deemed satisfied.

184. Plaintiffs and the other Class members would suffer economic

hardship if they returned their Affected Vehicles but did not receive the return of

all payments made by them. Because FCA is refusing to acknowledge any

revocation of acceptance and return immediately any payments made, Plaintiffs

and the other Class members have not re-accepted their Affected Vehicles by

retaining them.

185. The amount in controversy of Plaintiffs’ individual claims meets or

exceeds the sum of $25. The amount in controversy of this action exceeds the sum


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of $50,000, exclusive of interest and costs, computed on the basis of all claims to

be determined in this lawsuit.

186. Plaintiffs, individually and on behalf of the other Class members, seek

all damages permitted by law, including diminution in value of the Affected

Vehicles, in an amount to be proven at trial.

B. Claims Brought on Behalf of the Michigan Subclass

COUNT I

VIOLATION OF THE MICHIGAN CONSUMER PROTECTION ACT

(MICH. COMP. LAWS § 445.903 ET SEQ.)

187. Plaintiffs incorporate by reference all paragraphs as though fully set

forth herein.

188. This claim is brought on behalf of the Michigan Subclass.

189. Plaintiffs and the Michigan Class Members were “person[s]” within

the meaning of the Mich. Comp. Laws § 445.902(1)(d).

190. The Michigan Consumer Protection Act (“Michigan CPA”) prohibits

“[u]nfair, unconscionable, or deceptive methods, acts, or practices in the conduct

of trade or commerce,” … including: “(c) Representing that goods or services

have … characteristics … that they do not have;” … “(e) Representing that goods

or services are of a particular standard … if they are of another;” … “(i) Making

false or misleading statements of fact concerning the reasons for, existence of, or

amounts of price reductions;” … “(s) Failing to reveal a material fact, the omission


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of which tends to mislead or deceive the consumer, and which fact could not

reasonably be known by the consumer;” … “(bb) Making a representation of fact

or statement of fact material to the transaction such that a person reasonably

believes the represented or suggested state of affairs to be other than it actually is;”

… and “(cc) Failing to reveal facts that are material to the transaction in light of

representations of fact made in a positive manner.” Mich. Comp. Laws

§ 445.903(1).

191. In the course of the Defendants’ business, they willfully failed to

disclose and actively concealed that the NOx reduction system in the Affected

Vehicles turns off or is limited during normal driving conditions, that the Affected

Vehicles emitted far more pollutants than gasoline-powered vehicles, that the

Affected Vehicles emit far more pollution than a reasonable consumer would

expect in light of the Defendants’ advertising campaign, and that the Affected

Vehicles emitted unlawfully high levels of pollutants, including NOx, as described

above. Accordingly, the Defendants engaged in unfair methods of competition,

unconscionable acts or practices, and unfair or deceptive acts or practices,

including representing that Affected Vehicles have characteristics, uses, benefits,

and qualities which they do not have; representing that Affected Vehicles are of a

particular standard and quality when they are not; failing to reveal a material fact,

the omission of which tends to mislead or deceive the consumer, and which fact


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could not reasonably be known by the consumer; making a representation of fact or

statement of fact material to the transaction such that a person reasonably believes

the represented or suggested state of affairs to be other than it actually is; and

failing to reveal facts that are material to the transaction in light of representations

of fact made in a positive manner.

192. In purchasing or leasing the Affected Vehicles, Plaintiffs and the other

Subclass members were deceived by the Defendants’ failure to disclose that the

NOx reduction system in the Affected Vehicles turns off or is limited during

normal driving conditions, that the emissions controls were defective, and that the

Affected Vehicles emitted unlawfully high levels of pollutants, including NOx, as

described above.

193. Plaintiffs and Subclass members reasonably relied upon the

Defendants’ false misrepresentations. They had no way of knowing that the

Defendants’ representations were false and gravely misleading. As alleged herein,

the Defendants engaged in extremely sophisticated methods of deception.

Plaintiffs and Subclass members did not, and could not, unravel Defendants’

deception on their own.

194. The Defendants’ actions as set forth above occurred in the conduct of

trade or commerce.


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195. The Defendants’ unfair or deceptive acts or practices were likely to

and did in fact deceive reasonable consumers.

196. The Defendants intentionally and knowingly misrepresented material

facts regarding the Affected Vehicles with an intent to mislead Plaintiffs and the

Subclass.

197. The Defendants knew or should have known that their conduct

violated the Michigan CPA.

198. The Defendants owed Plaintiffs and the Subclass a duty to disclose

the truth about their emissions systems manipulation because the Defendants:

a. Possessed exclusive knowledge that they manipulated the emissions

system in the Affected Vehicles to turn off or limit effectiveness in normal driving

conditions;

b. Intentionally concealed the foregoing from Plaintiffs and the Subclass;

and/or

c. Made incomplete representations that they manipulated the emissions


conditions, while purposefully withholding material facts from Plaintiffs and the

Subclass that contradicted these representations.

199. The Defendants had a duty to disclose that the NOx reduction system

in the Affected Vehicles turns off or is limited during normal driving conditions


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and that these Affected Vehicles were defective, employed a “Defeat Device,”

emitted pollutants at a much higher rate than gasoline-powered vehicles, had

emissions that far exceeded those expected by a reasonable consumer, and were

non-EPA-compliant and unreliable, because Plaintiffs and the other Subclass

members relied on the Defendants’ material representations that the Affected

Vehicles they were purchasing were reduced-emission vehicles, efficient, and free

from defects.

200. The Defendants’ conduct proximately caused injuries to Plaintiffs and

the other Subclass members.

201. Plaintiffs and the other Subclass members were injured and suffered

ascertainable loss, injury-in-fact, and/or actual damage as a proximate result of the

Defendants’ conduct in that Plaintiffs and the other Subclass members overpaid for

their Affected Vehicles and did not receive the benefit of their bargain, and their

Affected Vehicles have suffered a diminution in value. These injuries are the

direct and natural consequence of the Defendants’ misrepresentations and

omissions.

202. The Defendants’ violations present a continuing risk to Plaintiffs as

well as to the general public. The Defendants’ unlawful acts and practices

complained of herein affect the public interest.


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203. Plaintiffs seek monetary relief measured as the greater of (a) actual

damages in an amount to be determined at trial and (b) statutory damages in the

amount of $250 for Plaintiffs and each Michigan Class member; reasonable

attorneys’ fees; and any other just and proper relief available under Mich. Comp.

Laws § 445.911. Plaintiffs also seek punitive damages against the Defendants

because they carried out despicable conduct with willful and conscious disregard

of the rights of others. The Defendants’ unlawful conduct constitutes malice,

oppression, and fraud warranting punitive damages.

COUNT II

FRAUDULENT CONCEALMENT

(BASED ON MICHIGAN LAW)


forth herein.

205. This claim is brought on behalf of the Michigan Subclass.

206. The Defendants intentionally concealed that the NOx reduction

system in the Affected Vehicles turns off or is limited during normal driving

conditions, that the Affected Vehicles had defective emissions controls, emitted

pollutants at a higher level than gasoline-powered vehicles, emitted pollutants

higher than a reasonable consumer would expect in light of the Defendants’

advertising campaign, emitted unlawfully high levels of pollutants such as NOx,

and were non-compliant with EPA emission requirements, or the Defendants acted


- 87 -

with reckless disregard for the truth, and denied Plaintiffs and the other Subclass

members information that is highly relevant to their purchasing decision.

207. The Defendants further affirmatively misrepresented to Plaintiffs and

Subclass members in advertising and other forms of communication, including

standard and uniform material provided with each car, that the Affected Vehicles

they were selling had no significant defects, were Earth-friendly and low-emission

vehicles, complied with EPA regulations, and would perform and operate properly

when driven in normal usage.

208. The Defendants knew these representations were false when made.

209. The Affected Vehicles purchased or leased by Plaintiffs and the other

Subclass members were, in fact, defective, emitting pollutants at a much higher

rate than gasoline-powered vehicles and at a much higher rate than a reasonable

consumer would expect in light of the Defendants’ advertising campaign, non-

EPA-compliant, and unreliable because the NOx reduction system in the Affected

Vehicles turns off or is limited during normal driving conditions.







- 88 -




from defects.

211. As alleged in this Complaint, at all relevant times, the Defendants

have held out the Affected Vehicles to be reduced-emissions, EPA-compliant

vehicles. The Defendants disclosed certain details about the diesel engine, but

nonetheless, the Defendants intentionally failed to disclose the important facts that

the NOx reduction system in the Affected Vehicles turns off or is limited during

normal driving conditions, and that the Affected Vehicles had defective emissions

controls, deploy a “Defeat Device,” emitted higher levels of pollutants than

expected by a reasonable consumer, emitted unlawfully high levels of pollutants,

and were non-compliant with EPA emissions requirements, making other

disclosures about the emission system deceptive.

212. The truth about the defective emissions controls and the Defendants’

manipulations of those controls, unlawfully high emissions, the “Defeat Device,”

and non-compliance with EPA emissions requirements was known only to the

Defendants; Plaintiffs and the Subclass members did not know of these facts, and

the Defendants actively concealed these facts from Plaintiffs and Subclass

members.


- 89 -


Defendants’ deception. They had no way of knowing that the Defendants’

representations were false and/or misleading. As consumers, the Plaintiffs and

Subclass members did not, and could not, unravel the Defendants’ deception on

their own. Rather, the Defendants intended to deceive Plaintiffs and Subclass

members by concealing the true facts about the Affected Vehicle emissions.

214. The Defendants also concealed and suppressed material facts

concerning what is evidently the true culture of the Defendants—a culture

characterized by an emphasis on profits and sales above compliance with federal

and state clean air law and emissions regulations that are meant to protect the

public and consumers. Defendants also emphasized profits and sales above the

trust that Plaintiffs and Subclass members placed in their representations.

Consumers buy diesel cars from the Defendants because they feel they are clean

diesel cars. They do not want to be spewing noxious gases into the environment.

And yet, that is precisely what the Affected Vehicles are doing.

215. The Defendants’ false representations were material to consumers,

because they concerned the quality of the Affected Vehicles, because they

concerned compliance with applicable federal and state law and regulations

regarding clean air and emissions, and also because the representations played a

significant role in the value of the vehicles. As the Defendants well knew, their


- 90 -

customers, including Plaintiffs and Subclass members, highly valued that the

vehicles they were purchasing or leasing were fuel efficient, clean diesel cars with

reduced emissions, and they paid accordingly.

216. The Defendants had a duty to disclose the emissions defect, defective

design of emissions controls, and violations with respect to the Affected Vehicles

because details of the true facts were known and/or accessible only to the

Defendants, because the Defendants had exclusive knowledge as to such facts, and

because the Defendants knew these facts were not known to or reasonably

discoverable by Plaintiffs or Subclass members. The Defendants also had a duty to

disclose because they made general affirmative representations about the qualities

of the vehicles with respect to emissions, starting with references to them as

reduced-emissions diesel cars and as compliant with all laws in each country,

which were misleading, deceptive, and incomplete without the disclosure of the

additional facts set forth above regarding the actual emissions of their vehicles,

their actual philosophy with respect to compliance with federal and state clean air

law and emissions regulations, and their actual practices with respect to the

vehicles at issue. Having volunteered to provide information to Plaintiffs and

Subclass members, the Defendants had the duty to disclose not just the partial

truth, but the entire truth. These omitted and concealed facts were material

because they directly impact the value of the Affected Vehicles purchased or


- 91 -

leased by Plaintiffs and Subclass members. Whether a manufacturer’s products

pollute, comply with federal and state clean air law and emissions regulations, and

whether that manufacturer tells the truth with respect to such compliance or non-

compliance, are material concerns to a consumer, including with respect to the

emissions certifications testing their vehicles must pass. The Defendants

represented to Plaintiffs and Subclass members that they were purchasing or

leasing reduced-emission diesel vehicles when, in fact, they were purchasing or

leasing defective, high-emission vehicles with unlawfully high emissions.

217. The Defendants actively concealed and/or suppressed these material

facts, in whole or in part, to pad and protect their profits and to avoid the

perception that their vehicles were not clean diesel vehicles and did not or could

not comply with federal and state laws governing clean air and emissions, which

perception would hurt the brand’s image and cost the Defendants money, and they

did so at the expense of Plaintiffs and Subclass members.

218. The Defendants still have not made full and adequate disclosures, and

continue to defraud Plaintiffs and Subclass members by concealing material

information regarding the emissions qualities of the Affected Vehicles.

219. Plaintiffs and Subclass members were unaware of the omitted material

facts referenced herein, and they would not have acted as they did if they had

known of the concealed and/or suppressed facts, in that they would not have


- 92 -

purchased purportedly reduced-emissions diesel cars manufactured by the

Defendants, and/or would not have continued to drive their heavily polluting

vehicles, or would have taken other affirmative steps in light of the information

concealed from them. Plaintiffs’ and Subclass members’ actions were justified.

The Defendants were in exclusive control of the material facts, and such facts were

not generally known to the public, Plaintiffs, or Subclass members.

220. Because of the concealment and/or suppression of the facts, Plaintiffs

and Subclass members have sustained damage because they own vehicles that are

diminished in value as a result of the Defendants’ concealment of the true quality

and quantity of those vehicles’ emissions and the Defendants’ failure to timely

disclose the defect or defective design of the diesel engine system, the actual

emissions qualities and quantities of the Defendants’ vehicles, and the serious

issues engendered by the Defendants’ corporate policies. Had Plaintiffs and

Subclass members been aware of the true emissions facts with regard to the

Affected Vehicles, and the Defendants’ disregard for the truth and compliance with

applicable federal and state law and regulations, Plaintiffs and Subclass members

who purchased or leased new or certified previously owned vehicles would have

paid less for their vehicles or would not have purchased or leased them at all.

221. The value of Plaintiffs’ and Subclass members’ vehicles has

diminished as a result of the Defendants’ fraudulent concealment of the defective


- 93 -

emissions controls of the Affected Vehicles, the unlawfully high emissions of the

Affected Vehicles, and the non-compliance with EPA emissions requirements, all

of which has greatly tarnished the Defendants’ brand name attached to Plaintiffs’

and Subclass members’ vehicles and made any reasonable consumer reluctant to

purchase any of the Affected Vehicles, let alone pay what otherwise would have

been fair market value for the vehicles.

222. Accordingly, the Defendants are liable to Plaintiffs and Subclass

members for damages in an amount to be proven at trial.

223. The Defendants’ acts were done wantonly, maliciously, oppressively,

deliberately, with intent to defraud, and in reckless disregard of Plaintiffs’ and

Subclass members’ rights and the representations that the Defendants made to

them, in order to enrich the Defendants. The Defendants’ conduct warrants an

assessment of punitive damages in an amount sufficient to deter such conduct in

the future, which amount is to be determined according to proof.

COUNT III

BREACH OF CONTRACT

(BASED ON MICHIGAN LAW)

224. Plaintiffs incorporate by reference all preceding allegations as though

fully set forth herein.

225. Plaintiffs bring this Count on behalf of the Michigan Subclass.


- 94 -

226. The Defendants’ misrepresentations and omissions alleged herein,

including, but not limited to, the Defendants’ failure to disclose that the NOx

reduction system in the Affected Vehicles turns off or is limited during normal

driving conditions caused Plaintiffs and the other Subclass members to make their

purchases or leases of their Affected Vehicles. Absent those misrepresentations

and omissions, Plaintiffs and the other Subclass members would not have

purchased or leased these Affected Vehicles, would not have purchased or leased

these Affected Vehicles at the prices they paid, and/or would have purchased or

leased less expensive alternative vehicles that did not contain the defective

Adsorber Engine and which were not marketed as including such a system.

Accordingly, Plaintiffs and the other Subclass members overpaid for their Affected

Vehicles and did not receive the benefit of their bargain.

227. Each and every sale or lease of an Affected Vehicle constitutes a

contract between FCA and the purchaser or lessee. FCA breached these contracts

by, among other things, selling or leasing to Plaintiffs and the other Subclass

members defective Affected Vehicles and by misrepresenting or failing to disclose

that the NOx reduction system in the Affected Vehicles turns off or is limited

during normal driving conditions, and is thus less valuable than vehicles not

equipped with the Adsorber Engine.


- 95 -

228. As a direct and proximate result of FCA’s breach of contract,

Plaintiffs and the Subclass have been damaged in an amount to be proven at trial,

which shall include, but is not limited to, all compensatory damages, incidental and

consequential damages, and other damages allowed by law.

C. Claims Brought on Behalf of the Alabama Subclass

COUNT I

VIOLATIONS OF THE ALABAMA DECEPTIVE

TRADE PRACTICES ACT

(ALA. CODE § 8-19-1 ET SEQ.)


forth herein.

230. Plaintiffs bring this Count on behalf of the Alabama Subclass.

231. Plaintiffs and the Subclass members are “consumers” within the

meaning of Ala. Code § 8-19-3(2).

232. Plaintiffs, the Subclass members, and the Defendants are “persons”

within the meaning of Ala. Code § 8-19-3(5).

233. The Affected Vehicles are “goods” within the meaning of Ala. Code

§ 8-19-3(3).

234. The Defendants were and are engaged in “trade or commerce” within

the meaning of Ala. Code § 8-19-3(8).


- 96 -

235. The Alabama Deceptive Trade Practices Act (“Alabama DTPA”)

declares several specific actions to be unlawful, including: “(5) Representing that

goods or services have sponsorship, approval, characteristics, ingredients, uses,

benefits, or qualities that they do not have,” “(7) Representing that goods or

services are of a particular standard, quality, or grade, or that goods are of a

particular style or model, if they are of another,” and “(27) Engaging in any other

unconscionable, false, misleading, or deceptive act or practice in the conduct of

trade or commerce.” Ala. Code § 8-19-5.

236. Plaintiffs intend to assert a claim under the Alabama DTPA. Plaintiffs

will make a demand in satisfaction of Ala. Code § 8-19-3 and may amend this

Complaint to assert claims under the Alabama DTPA once the required 15 days

have elapsed. This paragraph is included for purposes of notice only and is not

intended to actually assert a claim under the Alabama DTPA.

COUNT II

BREACH OF CONTRACT

(BASED ON ALABAMA LAW)



238. Plaintiffs bring this Count on behalf of the Alabama Subclass.




- 97 -







leased less expensive alternative vehicles that did not contain the Adsorber Engine

and which were not marketed as including such a system. Accordingly, Plaintiffs

and the other Subclass members overpaid for their Affected Vehicles and did not

receive the benefit of their bargain.











- 98 -



COUNT III


(BASED ON ALABAMA LAW)


forth herein.

243. This claim is brought on behalf of the Alabama Subclass.















- 99 -


















from defects.




- 100 -














members.








- 101 -






















- 102 -






















- 103 -






















- 104 -






















- 105 -









D. Claims Brought on Behalf of the Alaska Subclass

COUNT I

VIOLATION OF THE ALASKA UNFAIR TRADE

PRACTICES AND CONSUMER PROTECTION ACT

(ALASKA STAT. ANN. § 45.50.471 ET SEQ.)


forth herein.

262. Plaintiffs bring this Count on behalf of the Alaska Subclass.

263. The Alaska CPA proscribes unfair methods of competition and unfair

or deceptive acts or practices in the conduct of trade or commerce unlawful,

including: “(4) representing that goods or services have sponsorship, approval,

characteristics, ingredients, uses, benefits, or quantities that they do not have or

that a person has a sponsorship, approval, status, affiliation, or connection that the


- 106 -

person does not have;” “(6) representing that goods or services are of a particular

standard, quality, or grade, or that goods are of a particular style or model, if they

are of another;” “(8) advertising goods or services with intent not to sell them as

advertised;” or “(12) using or employing deception, fraud, false pretense, false

promise, misrepresentation, or knowingly concealing, suppressing, or omitting a

material fact with intent that others rely upon the concealment, suppression or

omission in connection with the sale or advertisement of goods or services whether

or not a person has in fact been misled, deceived or damaged.” Alaska Stat. Ann.

§ 45.50.471. Plaintiffs will make a demand in satisfaction of Alaska Stat. Ann.

§ 45.50.535, and may amend this Complaint to assert claims under the Alaska CPA

once the required notice period has elapsed. This paragraph is included for

purposes of notice only and is not intended to actually assert a claim under the

Alaska CPA.

COUNT II


(BASED ON ALASKA LAW)



265. This claim is brought on behalf of the Alaska Subclass.




- 107 -






















- 108 -









from defects.












- 109 -






members.















- 110 -






















- 111 -





















- 112 -






















- 113 -






















- 114 -



COUNT III

BREACH OF CONTRACT

(BASED ON ALASKA LAW)



285. Plaintiffs bring this Count on behalf of the Alaska Subclass.


including the Defendants’ failure to disclose the existence of the Affected

Vehicles’ defect and/or defective design of emissions controls as alleged herein,

caused Plaintiffs and the other Subclass members to make their purchases or leases

of their Affected Vehicles. Absent those misrepresentations and omissions,

Plaintiffs and the other Subclass members would not have purchased or leased

these Affected Vehicles, would not have purchased or leased these Affected

Vehicles at the prices they paid, and/or would have purchased or leased less

expensive alternative vehicles that did not contain the defective Adsorber Engine





- 115 -



by selling or leasing to Plaintiffs and the other Subclass members defective

Affected Vehicles and by misrepresenting or failing to disclose that the NOx


driving conditions and the existence of the Adsorber Engine’s defect and/or

defective design of emissions controls, including information known to FCA

rendering each Affected Vehicle non-EPA-compliant, and thus less valuable than

vehicles not equipped with the Adsorber Engine.





E. Claims Brought on Behalf of the Arizona Subclass

COUNT I

VIOLATIONS OF THE ARIZONA CONSUMER FRAUD ACT

(ARIZ. REV. STAT. § 44-1521 ET SEQ.)


forth herein.

290. Plaintiffs bring this Count on behalf of the Arizona Subclass.


- 116 -

291. The Arizona Consumer Fraud Act (“Arizona CFA”) provides that

“[t]he act, use or employment by any person of any deception, deceptive act or

practice, fraud, … misrepresentation, or concealment, suppression or omission of

any material fact with intent that others rely upon such concealment, suppression

or omission, in connection with the sale … of any merchandise whether or not any

person has in fact been misled, deceived or damaged thereby, is declared to be an

unlawful practice.” Ariz. Rev. Stat. § 44-1522(A).

292. In the course of the Defendants’ business, it willfully failed to disclose

and actively concealed that the NOx reduction system in the Affected Vehicles

turns off or is limited during normal driving conditions, that the Affected Vehicles

emitted far more pollutants than gasoline-powered vehicles, that the Affected

Vehicles emit far more pollution than a reasonable consumer would expect in light

of the Defendants’ advertising campaign, and that the Affected Vehicles emitted

unlawfully high levels of pollutants, including NOx, as described above.

Accordingly, the Defendants engaged in unlawful trade practices by employing

deception, deceptive acts or practices, fraud, misrepresentations, or concealment,

suppression or omission of any material fact with intent that others rely upon such

concealment, suppression or omission, in connection with the sale of Affected

Vehicles.


- 117 -


Subclass members were deceived by the Defendants’ failure to disclose the NOx


driving conditions, that the emissions controls were defective, and that the


described above.





Plaintiffs and Subclass members did not, and could not, unravel the Defendants’



trade or commerce.

296. The Defendants’ deception, fraud, misrepresentation, concealment,

suppression or omission of material facts were likely to and did in fact deceive

reasonable consumers.



Subclass.


- 118 -


violated the Arizona CFA.





conditions;


and/or













- 119 -


from defects.









omissions.




304. Plaintiffs and the Subclass seek monetary relief against the

Defendants in an amount to be determined at trial. Plaintiffs and the Subclass also

seek punitive damages because the Defendants engaged in aggravated and

outrageous conduct with an evil mind.

305. Plaintiffs also seek attorneys’ fees and any other just and proper relief

available.


- 120 -

COUNT II

BREACH OF CONTRACT

(BASED ON ARIZONA LAW)



307. Plaintiffs bring this Count on behalf of the Arizona Subclass.


including the Defendants’ failure to disclose the existence of the Adsorber

Engine’s defect and/or defective design of emissions controls as alleged herein,

and their failure to disclose that the Affected Vehicles would not meet and

maintain their advertised MPG rate, caused Plaintiffs and the other Subclass

members to make their purchases or leases of their Affected Vehicles. Absent

those misrepresentations and omissions, Plaintiffs and the other Subclass members

would not have purchased or leased these Affected Vehicles, would not have

purchased or leased these Affected Vehicles at the prices they paid, and/or would

have purchased or leased less expensive alternative vehicles that did not contain

the defective Adsorber Engine and which were not marketed as including such a

system. Accordingly, Plaintiffs and the other Subclass members overpaid for their

Affected Vehicles and did not receive the benefit of their bargain.




- 121 -












COUNT III


(BASED ON ARIZONA LAW)


forth herein.

312. This claim is brought on behalf of the Arizona Subclass.






- 122 -









they were selling had no significant defects, were Earth friendly and low-emission













- 123 -







from defects.



vehicles. The Defendants disclosed certain details about the Adsorber Engine, but

nonetheless, the intentionally failed to disclose the important facts that the NOx


driving conditions, and that the Affected Vehicles had defective emissions









- 124 -

Defendants; Plaintiffs and the Subclass members did not know of these facts and


members.



representations were false and/or misleading. As consumers, Plaintiffs and
















- 125 -






















- 126 -






















- 127 -














disclose the defect or defective design of the Adsorber Engine, the actual emissions

qualities and quantities of the Defendants’ vehicles, and the serious issues

engendered by the Defendants’ corporate policies. Had Plaintiffs and Subclass

members been aware of the true emissions facts with regard to the Affected

Vehicles, and the Defendants’ disregard for the truth and compliance with



- 128 -




















- 129 -

F. Claims Brought on Behalf of the Arkansas Subclass

COUNT I

VIOLATIONS OF THE DECEPTIVE TRADE PRACTICE ACT

(ARK. CODE ANN. § 4-88-101 ET SEQ.)



332. This claim is brought on behalf of the Arkansas Subclass.

333. The Defendants, Plaintiffs, and the Arkansas subclass are “persons”

within the meaning of the Arkansas Deceptive Trade Practices Act (“Arkansas

DTPA”), Ark. Code Ann. § 4-88-102(5).

334. The “Affected Vehicles” are “goods” within the meaning of Ark.

Code Ann. § 4-88-102(4).

335. The Arkansas DTPA prohibits ““[d]eceptive and unconscionable trade

practices,” which include, but are not limited to, a list of enumerated items,

including “[e]ngaging in any other unconscionable, false, or deceptive act or

practice in business, commerce, or trade[.]” Ark. Code Ann. § 4-88-107(a)(10).

The Arkansas DTPA also prohibits the following when utilized in connection with

the sale or advertisement of any goods: “(1) The act, use, or employment by any

person of any deception, fraud, or false pretense; or (2) The concealment,

suppression, or omission of any material fact with intent that others rely upon the

concealment, suppression, or omission.” Ark. Code Ann. § 4-88-108.


- 130 -






















- 131 -




described above.








trade or commerce.





Subclass.


violated the Arkansas DTPA.


- 132 -





conditions;


and/or













from defects.


- 133 -









omissions.




348. Plaintiffs seek monetary relief measured as the greater of (a) actual


amount of $250 for Plaintiffs and each Arkansas Class member; (c) reasonable

attorneys’ fees; and (d) any other just and proper relief available under Arkansas

law. Plaintiffs also seek punitive damages against the Defendants because they

carried out despicable conduct with willful and conscious disregard of the rights of

others. The Defendants’ unlawful conduct constitutes malice, oppression, and

fraud warranting punitive damages.


- 134 -

COUNT II


(BASED ON ARKANSAS LAW)


forth herein.

350. This claim is brought on behalf of the Arkansas Subclass.



conditions, that the Affected Vehicles had defective emissions controls, did not

meet and maintain the advertised MPG rate, emitted pollutants at a higher level

than gasoline-powered vehicles, emitted pollutants higher than a reasonable

consumer would expect in light of the Defendants’ advertising campaign, emitted

unlawfully high levels of pollutants such as NOx, and were non-compliant with

EPA emission requirements, or the Defendants acted with reckless disregard for

the truth, and denied Plaintiffs and the other Subclass members information that is

highly relevant to their purchasing decision.




they were selling had no significant defects, were earth-friendly and low-emission


- 135 -








EPA-compliant, costly in that the Plaintiffs and other Subclass members had to pay

more for fuel than they reasonably expected, and unreliable because the NOx


driving conditions.



and that these Affected Vehicles were defective, did not meet and maintain the

advertised MPG rate, employed a “Defeat Device,” emitted pollutants at a much

higher rate than gasoline-powered vehicles, had emissions that far exceeded those

expected by a reasonable consumer, and were non-EPA-compliant and unreliable,

because Plaintiffs and the other Subclass members relied on the Defendants’

material representations that the Affected Vehicles they were purchasing were

reduced-emission vehicles, efficient, and free from defects.


- 136 -












manipulations of those controls, failure to meet and maintain the advertised MPG

rate, unlawfully high emissions, the “Defeat Device,” and non-compliance with

EPA emissions requirements was known only to the Defendants; Plaintiffs and the

Subclass members did not know of these facts and the Defendants actively

concealed these facts from Plaintiffs and Subclass members.






- 137 -




concerning what is evidently the true culture of each Defendant—one









because they concerned the quality and cost-effectiveness of the Affected Vehicles,

because they concerned compliance with applicable federal and state law and

regulations regarding clean air and emissions, and also because the representations

played a significant role in the value of the vehicles. As the Defendants well knew,

their customers, including Plaintiffs and Subclass members, highly valued that the




- 138 -


design of emissions controls, failure to meet and maintain the advertised MPG rate,

and violations with respect to the Affected Vehicles because details of the true

facts were known and/or accessible only to the Defendants, because the

Defendants had exclusive knowledge as to such facts, and because the Defendants

knew these facts were not known to or reasonably discoverable by Plaintiffs or

Subclass members. The Defendants also had a duty to disclose because they made

general affirmative representations about the qualities of the vehicles with respect

to emissions, starting with references to them as reduced-emissions diesel cars and

as compliant with all laws in each country, which were misleading, deceptive, and

incomplete without the disclosure of the additional facts set forth above regarding

the actual emissions of their vehicles, their actual philosophy with respect to

compliance with federal and state clean air law and emissions regulations, and their

actual practices with respect to the vehicles at issue. Having volunteered to

provide information to Plaintiffs and Subclass members, the Defendants had the

duty to disclose not just the partial truth, but the entire truth. These omitted and

concealed facts were material because they directly impact the value of the

Affected Vehicles purchased or leased by Plaintiffs and Subclass members.

Whether a manufacturer’s products pollute, comply with federal and state clean air

law and emissions regulations, and whether that manufacturer tells the truth with


- 139 -

respect to such compliance or non-compliance, are material concerns to a

consumer, including with respect to the emissions certifications testing their

vehicles must pass. The Defendants represented to Plaintiffs and Subclass

members that they were purchasing or leasing reduced-emission diesel vehicles

when, in fact, they were purchasing or leasing defective, high-emission vehicles

with unlawfully high emissions.
















- 140 -








and quantity of those vehicles’ emissions and fuel efficiency and the Defendants’

failure to timely disclose the defect or defective design of the Adsorber Engine, the

actual emissions qualities and quantities of the Defendants’ vehicles, and the

serious issues engendered by the Defendants’ corporate policies. Had Plaintiffs

and Subclass members been aware of the true emissions facts with regard to the


applicable federal and state law and regulations, and their failure to meet and

maintain the advertised MPG rate, Plaintiffs and Subclass members who purchased

or leased new or certified previously owned vehicles would have paid less for their

vehicles or would not have purchased or leased them at all.





- 141 -


of which has greatly tarnished the Defendants’ brand names, attached to Plaintiffs’












COUNT III

BREACH OF CONTRACT

(BASED ON ARKANSAS LAW)


forth herein.

370. Plaintiffs bring this Count on behalf of the Arkansas Subclass

members.


- 142 -






















- 143 -







G. Claims Brought on Behalf of the California Subclass

COUNT I

VIOLATIONS OF THE CALIFORNIA UNFAIR COMPETITION LAW

(CAL. BUS. & PROF. CODE § 17200 ET SEQ.)

374. Plaintiffs James Bledsoe and Jay Martin (Plaintiffs, for purposes of all

California Subclass Counts) incorporate by reference all paragraphs as though fully

set forth herein.

375. This claim is brought on behalf of the California Subclass.

376. California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof.

Code § 17200 et seq., proscribes acts of unfair competition, including “any

unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue

or misleading advertising.”

377. The Defendants’ conduct, as described herein, was and is in violation

of the UCL. The Defendants’ conduct violates the UCL in at least the following

ways:


- 144 -

i. By failing to disclose that the NOx reduction system in the Affected

Vehicles turns off or is limited during normal driving conditions;

ii. By selling and leasing Affected Vehicles that suffer from a defective

emissions control system and that emit unlawfully high levels of pollutants under

normal driving conditions;

iii. By knowingly and intentionally concealing from Plaintiffs and the

other Subclass members that the NOx reduction system in the Affected Vehicles

turns off or is limited during normal driving conditions and that the Affected

Vehicles suffer from a defective emissions control system and emit unlawfully

high levels of pollutants under normal driving conditions;

iv. By marketing Affected Vehicles as reduced emissions vehicles

possessing functional and defect-free, EPA-compliant diesel engine systems;

v. By advertising and posting a miles per gallon (“MPG”) rate that the

Affected Vehicles do not meet and maintain;

vi. By violating federal laws, including the Clean Air Act; and

vii. By violating other California laws, including California consumer

protection laws and California laws governing vehicle emissions and emission

testing requirements.


- 145 -



Subclass.




driving conditions, that the emissions controls were defective, that the Affected

Vehicles would not meet and maintain the advertised MPG rate; and that the


described above.








violated the UCL.




- 146 -



conditions;


and/or







and that these Affected Vehicles were defective, emitted pollutants at a much


expected by a reasonable consumer, were non-EPA-compliant and unreliable, and

that the Affected Vehicles would not meet and maintain their advertised MPG rate,







- 147 -





Affected Vehicles have suffered a diminution in value. They also were required to

pay more for fuel than they reasonably anticipated based on the Defendants’

material representations. These injuries are the direct and natural consequence of

the Defendants’ misrepresentations and omissions.




387. The Defendants’ misrepresentations and omissions alleged herein




these vehicles, would not have purchased or leased these Affected Vehicles at the

prices they paid, and/or would have purchased or leased less expensive alternative

vehicles that did not contain defective Adsorber Engines that failed to comply with

EPA and California emissions standards.


- 148 -

388. Accordingly, Plaintiffs and the other Subclass members have suffered

injury in fact, including lost money or property, as a result of the Defendants’

misrepresentations and omissions.

389. Plaintiffs request that this Court enter such orders or judgments as

may be necessary to restore to Plaintiffs and members of the Subclass any money it

acquired by unfair competition, including restitution and/or restitutionary

disgorgement, as provided in Cal. Bus. & Prof. Code § 17203 and Cal. Civ. Code

§ 3345, and for such other relief as may be appropriate.

COUNT II

VIOLATIONS OF THE CALIFORNIA CONSUMER

LEGAL REMEDIES ACT

(CAL. CIV. CODE § 1750 ET SEQ.)


forth herein.


392. California’s Consumers Legal Remedies Act (“CLRA”), Cal. Civ.

Code § 1750 et seq., proscribes “unfair methods of competition and unfair or

deceptive acts or practices undertaken by any person in a transaction intended to

result or which results in the sale or lease of goods or services to any consumer.”

393. The Affected Vehicles are “goods” as defined in Cal. Civ. Code

§ 1761(a).


- 149 -

394. Plaintiffs and the other Subclass members are “consumers” as defined

in Cal. Civ. Code § 1761(d), and Plaintiffs, the other Subclass members, and the

Defendants are “persons” as defined in Cal. Civ. Code § 1761(c).

395. As alleged above, the Defendants made representations concerning

the benefits, efficiency, performance, and safety features of the Affected Vehicles

and Adsorber Engines that were misleading.




normal driving conditions, that the Affected Vehicles were equipped with defective

Adsorber Engines that failed EPA and California emissions standards, and that the

Affected Vehicles would not meet and maintain the advertised MPG rate.

397. The Defendants’ conduct, as described hereinabove, was and is in

violation of the CLRA. The Defendants’ conduct violates at least the following

enumerated CLRA provisions:

i. Cal. Civ. Code § 1770(a)(2): Misrepresenting the approval or

certification of goods.

ii. Cal. Civ. Code § 1770(a)(3): Misrepresenting the certification by

another.


- 150 -

iii. Cal. Civ. Code § 1770(a)(5): Representing that goods have

sponsorship, approval, characteristics, uses, benefits, or quantities which they do

not have.

iv. Cal. Civ. Code § 1770(a)(7): Representing that goods are of a

particular standard, quality, or grade, if they are of another.

v. Cal. Civ. Code § 1770(a)(9): Advertising goods with intent not to sell

them as advertised.

vi. Cal. Civ. Code § 1770(a)(16): Representing that goods have been

supplied in accordance with a previous representation when they have not.



Subclass.






described above. They were also deceived by the Defendants’ failure to disclose

that the Affected Vehicles would not meet and maintain their advertised MPG rate.


- 151 -








violated the CLRA.





conditions;


and/or






- 152 -





emissions that far exceeded those expected by a reasonable consumer, were non-

EPA-compliant and unreliable, and would not meet and maintain the Affected

Vehicles’ posted MPG rate, because Plaintiffs and the other Subclass members

relied on the Defendants’ material representations that the Affected Vehicles they

were purchasing were reduced-emission vehicles, efficient, and free from defects.







Affected Vehicles have suffered a diminution in value. They also were required to

pay more for fuel than they reasonably anticipated based on the Defendants’

material representations. These injuries are the direct and natural consequence of

the Defendants’ misrepresentations and omissions.


- 153 -




407. The Defendants knew, should have known, or was reckless in not

knowing of the defective design and/or manufacture of the Adsorber Engines, and

that the Affected Vehicles were not suitable for their intended use.

408. The facts concealed and omitted by the Defendants from Plaintiffs and

the other Subclass members are material in that a reasonable consumer would have

considered them to be important in deciding whether to purchase or lease the

Affected Vehicles or pay a lower price. Had Plaintiffs and the other Subclass

members known about the defective nature of the Affected Vehicles, and their non-

compliance with EPA requirements, and the failure of the Affected Vehicles to

meet and maintain their posted MPG rate, they would not have purchased or leased

the Affected Vehicles or would not have paid the prices they paid.

409. Plaintiffs and the Subclass have provided the Defendants with notice

of their violations of the CLRA pursuant to Cal. Civ. Code § 1782(a).

410. Plaintiffs’ and the other Subclass members’ injuries were proximately

caused by the Defendants’ unlawful and deceptive business practices.

411. While Plaintiffs do not seek to recover damages under the CLRA in

this initial Complaint, after mailing appropriate notice and demand in accordance


- 154 -

with CAL. CIVIL CODE §§ 1782(a) & (d), Plaintiffs will subsequently amend this

Complaint to also include a request for compensatory and punitive damages.

COUNT III

VIOLATIONS OF THE CALIFORNIA FALSE ADVERTISING LAW

(CAL. BUS. & PROF. CODE § 17500 ET SEQ.)


forth herein.


414. California Bus. & Prof. Code § 17500 states: “It is unlawful for any

… corporation … with intent directly or indirectly to dispose of real or personal

property … to induce the public to enter into any obligation relating thereto, to

make or disseminate or cause to be made or disseminated … from this state before

the public in any state, in any newspaper or other publication, or any advertising

device, … or in any other manner or means whatever, including over the Internet,

any statement … which is untrue or misleading, and which is known, or which by

the exercise of reasonable care should be known, to be untrue or misleading.”

415. The Defendants caused to be made or disseminated through California

and the United States, through advertising, marketing, and other publications,

statements that were untrue or misleading, and which were known, or which by the

exercise of reasonable care should have been known to the Defendants, to be


- 155 -

untrue and misleading to consumers, including Plaintiffs and the other Subclass

members.

416. The Defendants have violated § 17500 because the misrepresentations

and omissions regarding the functionality, reliability, environmental-friendliness,

lawfulness, fuel efficiency, and safety of Affected Vehicles as set forth in this

Complaint were material and likely to deceive a reasonable consumer.

417. Plaintiffs and the other Subclass members have suffered an injury in

fact, including the loss of money or property, as a result of the Defendants’ unfair,

unlawful, and/or deceptive practices. In purchasing or leasing their Affected

Vehicles, Plaintiffs and the other Subclass members relied on the

misrepresentations and/or omissions of the Defendants with respect to the

functionality, reliability, environmental-friendliness, fuel efficiency, and

lawfulness of the Affected Vehicles. The Defendants’ representations turned out

not to be true because the NOx reduction system in the Affected Vehicles turns off

or is limited during normal driving conditions and the Affected Vehicles are

distributed with Adsorber Engines that include defective emissions controls and a

“Defeat Device.” The Affected Vehicles also do not meet and maintain the posted

MPG rate. Had Plaintiffs and the other Subclass members known this, they would

not have purchased or leased their Affected Vehicles and/or paid as much for them.


- 156 -



418. All of the wrongful conduct alleged herein occurred, and continues to

occur, in the conduct of the Defendants’ business. The Defendants’ wrongful

conduct is part of a pattern or generalized course of conduct that is still perpetuated

and repeated, both in the State of California and nationwide.

419. Plaintiffs, individually and on behalf of the other Subclass members,

request that this Court enter such orders or judgments as may be necessary to

restore to Plaintiffs and the other Subclass members any money the Defendants

acquired by unfair competition, including restitution and/or restitutionary

disgorgement, and for such other relief as may be appropriate.

COUNT IV

BREACH OF CONTRACT

(BASED ON CALIFORNIA LAW)


forth herein.

421. Plaintiffs bring this Count on behalf of the California Subclass

members.





- 157 -





















- 158 -





COUNT V


(BASED ON CALIFORNIA LAW)


forth herein.













- 159 -















driving conditions.







- 160 -






















- 161 -






















- 162 -






















- 163 -






















- 164 -






















- 165 -


















- 166 -

H. Claims Brought on Behalf of the Colorado Subclass

COUNT I

VIOLATIONS OF THE COLORADO CONSUMER PROTECTION ACT

(COLO. REV. STAT. § 6-1-101 ET SEQ.)


forth herein.

446. Plaintiffs bring this Count on behalf of the Colorado Subclass.

447. Colorado’s Consumer Protection Act (the “Colorado CPA”) prohibits

a person from engaging in a “deceptive trade practice,” which includes knowingly

making “a false representation as to the source, sponsorship, approval, or

certification of goods,” or “a false representation as to the characteristics,

ingredients, uses, benefits, alterations, or quantities of goods.” Colo. Rev. Stat.

§ 6-1-105(1)(b), (e). The Colorado CPA further prohibits “represent[ing] that

goods … are of a particular standard, quality, or grade … if he knows or should

know that they are of another,” and “advertis[ing] goods … with intent not to sell

them as advertised.” Colo. Rev. Stat. § 6-1-105(1)(g), (i).

448. Each Defendant is a “person” under § 6-1-102(6) of the Colorado

CPA, Col. Rev. Stat. § 6-1-101 et seq.

449. Plaintiffs and Colorado Subclass members are “consumers” for the

purpose of Col. Rev. Stat. § 6-1-113(1)(a) who purchased or leased one or more

Affected Vehicles.


- 167 -






















- 168 -




described above.








trade or commerce.





Subclass.


violated the Colorado CPA.


- 169 -





conditions;


and/or













from defects.


- 170 -




ascertainable loss, injury-in-fact, and/or actual damage as a proximate result of




direct and natural consequence of Defendants’ misrepresentations and omissions.

461. Defendants’ violations present a continuing risk to Plaintiffs as well as

to the general public. Defendants’ unlawful acts and practices complained of

herein affect the public interest.

462. Pursuant to Col. Rev. Stat. § 6-1-113, Plaintiffs and the Subclass seek

monetary relief against Defendants measured as the greater of (a) actual damages

in an amount to be determined at trial and the discretionary trebling of such

damages, or (b) statutory damages in the amount of $500 for each Plaintiff and

Subclass member.

463. Plaintiffs and the Subclass also seek declaratory relief, attorneys’ fees,

and any other just and proper relief available under the Colorado CPA.


- 171 -

COUNT II

BREACH OF CONTRACT

(BASED ON COLORADO LAW)





including the Defendants’ failure to disclose the existence of the diesel engine

system’s defect and/or defective design of emissions controls as alleged herein,






expensive alternative vehicles that did not contain the Adsorber Engine and which

were not marketed as including such a system. Accordingly, Plaintiffs and the

other Subclass members overpaid for their Affected Vehicles and did not receive

the benefit of their bargain.





- 172 -



driving conditions and the existence of the diesel engine system’s defect and/or








COUNT III


(BASED ON COLORADO LAW)


forth herein.








- 173 -






















- 174 -






from defects.
















- 175 -


members.




















- 176 -






















- 177 -





















- 178 -





















- 179 -




















- 180 -

I. Claims Brought on Behalf of the Connecticut Subclass

COUNT I

VIOLATIONS OF THE CONNECTICUT UNFAIR

TRADE PRACTICES ACT

(CONN. GEN. STAT. ANN. § 42-110A ET SEQ.)


forth herein.

490. Plaintiffs bring this Count on behalf of the Connecticut Subclass.

491. Defendants and Plaintiffs are each “persons” as defined by Conn.

Gen. Stat. Ann. § 42-110a(3).

492. The Connecticut Unfair Trade Practices Act (“Connecticut UTPA”)

provides that “[n]o person shall engage in unfair methods of competition and

unfair or deceptive acts or practices in the conduct of any trade or commerce.”

Conn. Gen. Stat. Ann. § 42-110b(a). The Connecticut UTPA further provides a

private right of action under Conn. Gen. Stat. Ann. § 42-110g(a). In the course of

Defendants’ business, they willfully failed to disclose and actively concealed that


normal driving conditions, that the Affected Vehicles emitted far more pollutants

than gasoline-powered vehicles, that the Affected Vehicles emit far more pollution

than a reasonable consumer would expect in light of Defendants’ advertising

campaign, and that the Affected Vehicles emitted unlawfully high levels of


- 181 -

pollutants, including NOx, as described above. Accordingly, Defendants engaged

in unfair and deceptive trade practices because their conduct (1) offends public

policy as it has been established by statutes, the common law or other established

concept of unfairness; (2) is immoral, unethical, oppressive or unscrupulous; or (3)

causes substantial injury to consumers, competitors or other business persons. The

harm caused to consumers, motorists, and pedestrians outweighs any benefit

associated with such practices, and Defendants fraudulently concealed the

defective nature of the Affected Vehicles from consumers.

493. Defendants have also engaged in deceptive conduct because (1) they

made representations, omissions, or engaged in other conduct likely to mislead

consumers; (2) consumers interpret the message reasonably under the

circumstances; and (3) the misleading representation, omission, or practice is

material—that is, likely to affect consumer decisions or conduct.









- 182 -

















described above.





- 183 -





trade or commerce.





Subclass.


violated the Connecticut UTPA.





conditions;


and/or


- 184 -













from defects.








- 185 -






506. Plaintiffs and the other Class members sustained damages as a result

of Defendants’ unlawful acts, and are therefore entitled to damages and other relief

as provided under the Connecticut UTPA.

507. Plaintiffs also seek court costs and attorneys’ fees as a result of

Defendants’ violation of the Connecticut UTPA as provided in Conn. Gen. Stat.

Ann. § 42-110g(d). A copy of this Complaint has been mailed to the Attorney

General and the Commissioner of Consumer Protection of the State of Connecticut

in accordance with Conn. Gen. Stat. Ann. § 42-110g(c).

COUNT II

BREACH OF CONTRACT

(BASED ON CONNECTICUT LAW)



509. Plaintiffs bring this Count on behalf of the Connecticut Subclass

members.


- 186 -

510. FCA’s misrepresentations and omissions alleged herein, including,

but not limited to, FCA’s failure to disclose that the NOx reduction system in the

Affected Vehicles turns off or is limited during normal driving conditions caused

Plaintiffs and the other Subclass members to make their purchases or leases of their

Affected Vehicles. Absent those misrepresentations and omissions, Plaintiffs and

the other Subclass members would not have purchased or leased these Affected

Vehicles, would not have purchased or leased these Affected Vehicles at the prices

they paid, and/or would have purchased or leased less expensive alternative

vehicles that did not contain the Adsorber Engine and which were not marketed as

including such a system. Accordingly, Plaintiffs and the other Subclass members

overpaid for their Affected Vehicles and did not receive the benefit of their

bargain.






during normal driving conditions, rendering the Affected Vehicles less valuable

than vehicles not equipped with the Adsorber Engine.


- 187 -





COUNT III

FRAUDULENT NON-DISCLOSURE

(BASED ON CONNECTICUT LAW)



514. Plaintiffs bring this Count on behalf of the Connecticut Subclass.













- 188 -




















from defects.


- 189 -
















members.






- 190 -





















- 191 -






















- 192 -






















- 193 -






















- 194 -












J. Claims Brought on Behalf of the Delaware Subclass

COUNT I

VIOLATIONS OF THE DELAWARE CONSUMER FRAUD ACT

(DEL. CODE § 2513 ET SEQ.)


forth herein.

534. Plaintiffs bring this Count on behalf of the Delaware Subclass.

535. Each Defendant is a “person” within the meaning of 6 Del. Code

§ 2511(7).


- 195 -

536. The Delaware Consumer Fraud Act (“Delaware CFA”) prohibits the

“act, use or employment by any person of any deception, fraud, false pretense,

false promise, misrepresentation, or the concealment, suppression, or omission of

any material fact with intent that others rely upon such concealment, suppression

or omission, in connection with the sale, lease or advertisement of any

merchandise, whether or not any person has in fact been misled, deceived or

damaged thereby.” 6 Del. Code § 2513(a). In the course of Defendants’ business,

they willfully failed to disclose and actively concealed that the NOx reduction


conditions, that the Affected Vehicles emitted far more pollutants than gasoline-

powered vehicles, that the Affected Vehicles emit far more pollution than a

reasonable consumer would expect in light of Defendants’ advertising campaigns,

and that the Affected Vehicles emitted unlawfully high levels of pollutants,

including NOx, as described above. Accordingly, Defendants have engaged in

deception, fraud, false pretense, false promise, misrepresentation, or the

concealment, suppression, or omission of any material fact with intent that others

rely upon such concealment, suppression or omission, in connection with the sale,

lease or advertisement of the Affected Vehicles.




- 196 -






















- 197 -


described above.








trade or commerce.





Subclass.


violated the Delaware CFA.




- 198 -



conditions;


and/or













from defects.




- 199 -










549. Plaintiffs seek damages under the Delaware CFA for injury resulting

from the direct and natural consequences of Defendants’ unlawful conduct. See,

e.g., Stephenson v. Capano Dev., Inc., 462 A.2d 1069, 1077 (Del. 1983). Plaintiffs

also seek declaratory relief, attorneys’ fees, and any other just and proper relief

available under the Delaware CFA.

550. Defendants’ engaged in gross, oppressive, or aggravated conduct

justifying the imposition of punitive damages.

COUNT II

BREACH OF CONTRACT

(BASED ON DELAWARE LAW)




- 200 -



















during normal driving conditions, and that they are thus less valuable than vehicles

not equipped with the Adsorber Engine.


- 201 -





COUNT III


(BASED ON DELAWARE LAW)


forth herein.








and were non-compliant with EPA emission requirements, or Defendants acted






- 202 -





560. Defendants knew these representations were false when made.




consumer would expect in light of Defendants’ advertising campaign, non-EPA-

compliant, and unreliable because the NOx reduction system in the Affected


562. Defendants had a duty to disclose that the NOx reduction system in

the Affected Vehicles turns off or is limited during normal driving conditions and

that these Affected Vehicles were defective, employed a “Defeat Device,” emitted

pollutants at a much higher rate than gasoline-powered vehicles, had emissions that

far exceeded those expected by a reasonable consumer, and were non-EPA-

compliant and unreliable, because Plaintiffs and the other Subclass members relied

on Defendants’ material representations that the Affected Vehicles they were

purchasing were reduced-emission vehicles, efficient, and free from defects.


- 203 -

563. As alleged in this Complaint, at all relevant times, Defendants have

held out the Affected Vehicles to be reduced-emissions, EPA-compliant vehicles.

Defendants disclosed certain details about the diesel engine, but nonetheless,

Defendants intentionally failed to disclose the important facts that the NOx







564. The truth about the defective emissions controls and Defendants’


and non-compliance with EPA emissions requirements was known only to

Defendants; Plaintiffs and the Subclass members did not know of these facts and

Defendants actively concealed these facts from Plaintiffs and Subclass members.

565. Plaintiffs and Subclass members reasonably relied upon Defendants’

deception. They had no way of knowing that Defendants’ representations were

false and/or misleading. As consumers, Plaintiffs and Subclass members did not,

and could not, unravel Defendants’ deception on their own. Rather, Defendants


- 204 -

intended to deceive Plaintiffs and Subclass members by concealing the true facts

about the Affected Vehicle emissions.

566. Defendants also concealed and suppressed material facts concerning

what is evidently the true culture of Defendants—one characterized by an

emphasis on profits and sales above compliance with federal and state clean air law

and emissions regulations that are meant to protect the public and consumers.

Defendants also emphasized profits and sales above the trust that Plaintiffs and

Subclass members placed in their representations. Consumers buy diesel cars from

Defendants because they feel they are clean diesel cars. They do not want to be

spewing noxious gases into the environment. And yet, that is precisely what the

Affected Vehicles are doing.

567. Defendants’ false representations were material to consumers, because

they concerned the quality of the Affected Vehicles, because they concerned

compliance with applicable federal and state law and regulations regarding clean

air and emissions, and also because the representations played a significant role in

the value of the vehicles. As Defendants well knew, their customers, including

Plaintiffs and Subclass members, highly valued that the vehicles they were

purchasing or leasing were fuel efficient, clean diesel cars with reduced emissions,

and they paid accordingly.


- 205 -

568. Defendants had a duty to disclose the emissions defect, defective


because details of the true facts were known and/or accessible only to Defendants,

because Defendants had exclusive knowledge as to such facts, and because

Defendants knew these facts were not known to or reasonably discoverable by

Plaintiffs or Subclass members. Defendants also had a duty to disclose because

they made general affirmative representations about the qualities of their vehicles

with respect to emissions, starting with references to them as reduced-emissions

diesel cars and as compliant with all laws in each country, which were misleading,

deceptive, and incomplete without the disclosure of the additional facts set forth

above regarding the actual emissions of their vehicles, their actual philosophy with

respect to compliance with federal and state clean air law and emissions

regulations, and their actual practices with respect to the vehicles at issue. Having

volunteered to provide information to Plaintiffs and Subclass members, Defendants

had the duty to disclose not just the partial truth, but the entire truth. These

omitted and concealed facts were material because they directly impact the value

of the Affected Vehicles purchased or leased by Plaintiffs and Subclass members.





- 206 -


vehicles must pass. Defendants represented to Plaintiffs and Subclass members

that they were purchasing or leasing reduced-emission diesel vehicles when, in

fact, they were purchasing or leasing defective, high-emission vehicles with

unlawfully high emissions.

569. Defendants actively concealed and/or suppressed these material facts,

in whole or in part, to pad and protect their profits and to avoid the perception that

the Affected Vehicles were not clean diesel vehicles and did not or could not

comply with federal and state laws governing clean air and emissions, which

perception would hurt the brand’s image and cost Defendants money, and they did

so at the expense of Plaintiffs and Subclass members.

570. Defendants have still not made full and adequate disclosures, and






purchased purportedly reduced-emissions diesel cars manufactured by Defendants,

and/or would not have continued to drive their heavily polluting vehicles, or would

have taken other affirmative steps in light of the information concealed from them.


- 207 -

Plaintiffs’ and Subclass members’ actions were justified. Defendants were in

exclusive control of the material facts, and such facts were not generally known to

the public, Plaintiffs, or Subclass members.



diminished in value as a result of Defendants’ concealment of the true quality and

quantity of those vehicles’ emissions and Defendants’ failure to timely disclose the

defect or defective design of the diesel engine system, the actual emissions

qualities and quantities of the vehicles, and the serious issues engendered by

Defendants’ corporate policies. Had Plaintiffs and Subclass members been aware

of the true emissions facts with regard to the Affected Vehicles, and the

Defendants’ disregard for the truth and compliance with applicable federal and

state law and regulations, Plaintiffs and Subclass members who purchased or

leased new or certified previously owned vehicles would have paid less for their



diminished as a result of Defendants’ fraudulent concealment of the defective

emissions controls of the Affected Vehicles, of the unlawfully high emissions of

the Affected Vehicles, and of the non-compliance with EPA emissions

requirements, all of which has greatly tarnished the brand name attached to


- 208 -

Plaintiffs’ and Subclass members’ vehicles and made any reasonable consumer

reluctant to purchase any of the Affected Vehicles, let alone pay what otherwise

would have been fair market value for the vehicles.

574. Accordingly, Defendants are liable to Plaintiffs and Subclass


575. Defendants’ acts were done wantonly, maliciously, oppressively,


Subclass members’ rights and the representations that Defendants made to them, in

order to enrich Defendants. Defendants’ conduct warrants an assessment of

punitive damages in an amount sufficient to deter such conduct in the future, which

amount is to be determined according to proof.

K. Claims Brought on Behalf of the District of Columbia Subclass

COUNT I

VIOLATION OF THE CONSUMER PROTECTION

PROCEDURES ACT

(D.C. CODE § 28-3901 ET SEQ.)



577. Plaintiffs bring this Count on behalf of the D.C. Subclass.

578. Each Defendant is a “person” under the Consumer Protection

Procedures Act (“District of Columbia CPPA”), D.C. Code § 28-3901(a)(1).


- 209 -

579. Class Members are “consumers,” as defined by D.C. Code § 28-

3901(1)(2), who purchased or leased one or more Affected Vehicles.

580. The Defendants’ actions as set forth herein constitute “trade practices”

under D.C. Code § 28-3901.


















- 210 -








described above.








trade or commerce.




- 211 -



Subclass.


violated the District of Columbia CPPA.





conditions;


and/or










- 212 -





from defects.






592. As a direct and proximate result of the Defendants’ violations of the

District of Columbia CPPA, Plaintiffs and the D.C. Subclass have suffered injury-

in-fact and/or actual damage.

593. Plaintiffs and the D.C. Subclass are entitled to recover treble damages

or $1,500, whichever is greater, punitive damages, reasonable attorneys’ fees, and

any other relief the Court deems proper, under D.C. Code § 28-3901.

594. Plaintiffs seek punitive damages against the Defendants because the

Defendants’ conduct evidences malice and/or egregious conduct. The Defendants

maliciously and egregiously misrepresented the safety, cleanliness, efficiency and

reliability of the Affected Vehicles, deceived Class Members, and concealed


- 213 -

material facts that only they knew, all to avoid the expense and public relations

nightmare of correcting their defective and environmentally dirty Adsorber Engine.

595. The Defendants’ unlawful conduct constitutes malice warranting

punitive damages.

COUNT II


(BASED ON DISTRICT OF COLUMBIA LAW)


forth herein.

597. This claim is brought on behalf of the District of Columbia Subclass.












- 214 -















driving conditions.







- 215 -






















- 216 -






















- 217 -






















- 218 -






















- 219 -






















- 220 -

















COUNT III

BREACH OF CONTRACT

(BASED ON DISTRICT OF COLUMBIA LAW)


forth herein.


- 221 -

617. Plaintiffs bring this Count on behalf of the District of Columbia

Subclass members.




















- 222 -









L. Claims Brought on Behalf of the Florida Subclass

COUNT I

VIOLATIONS OF THE FLORIDA UNFAIR AND DECEPTIVE TRADE

PRACTICES ACT

(FLA. STAT. § 501.201 ET SEQ.)



622. Plaintiffs bring this Count on behalf of the Florida Subclass.

623. Plaintiffs and the Subclass are “consumers” within the meaning of

Florida Unfair and Deceptive Trade Practices Act (“Florida UDTPA”), Fla. Stat.

§ 501.203(7).

624. Defendants engaged in “trade or commerce” within the meaning of

Fla. Stat. § 501.203(8).


- 223 -

625. Florida’s Deceptive and Unfair Trade Practices Act prohibits “[u]nfair

methods of competition, unconscionable acts or practices, and unfair or deceptive

acts or practices in the conduct of any trade or commerce.” Fla. Stat. § 501.204(1).

Defendants participated in unfair and deceptive trade practices that violated the

Florida UDTPA as described herein. In the course of Defendants’ business, they

willfully failed to disclose and actively concealed that the NOx reduction system in

the Affected Vehicles turns off or is limited during normal driving conditions, that

the Affected Vehicles emitted far more pollutants than gasoline-powered vehicles,

that the Affected Vehicles emit far more pollution than a reasonable consumer

would expect in light of Defendants’ advertising campaign, and that the Affected


above. Accordingly, Defendants engaged in unfair methods of competition,

unconscionable acts or practices, and unfair or deceptive acts or practices as

defined in Fla. Stat. § 501.204(1). Defendants’ conduct offends established public

policy, is immoral, unethical, oppressive, unscrupulous, or substantially injurious

to consumers, and is likely to mislead consumers.






- 224 -




















described above.


- 225 -








trade or commerce.





Subclass.


violated the Florida UDTPA.





conditions;


- 226 -


and/or













from defects.







- 227 -




omissions.






COUNT II

BREACH OF CONTRACT

(BASED ON FLORIDA LAW)



640. Plaintiffs bring this Count on behalf of the Florida Subclass members.








- 228 -






















- 229 -

COUNT III


(BASED ON FLORIDA LAW)



645. Plaintiffs bring this Count on behalf of the Florida Subclass.

















- 230 -
















from defects.






- 231 -












members.










- 232 -






















- 233 -






















- 234 -






















- 235 -






















- 236 -







M. Claims Brought on Behalf of the Georgia Subclass

COUNT I

VIOLATION OF GEORGIA’S FAIR BUSINESS PRACTICES ACT

(GA. CODE ANN. § 10-1-390 ET SEQ.)



665. This claim is made on behalf of the Georgia Subclass.

666. The Georgia Fair Business Practices Act (“Georgia FBPA”) declares

“[u]nfair or deceptive acts or practices in the conduct of consumer transactions and

consumer acts or practices in trade or commerce” to be unlawful, Ga. Code. Ann. §

10-1-393(a), including, but not limited to, “representing that goods or services

have sponsorship, approval, characteristics, ingredients, uses, benefits, or

quantities that they do not have,” “[r]epresenting that goods or services are of a

particular standard, quality, or grade … if they are of another,” and “[a]dvertising

goods or services with intent not to sell them as advertised.” Ga. Code. Ann. § 10-


- 237 -

1-393(b). Plaintiffs will make a demand in satisfaction of O.C.G.A. § 10-1-399(b),

and may amend this Complaint to assert claims under the Georgia FBPA once the

required notice period has elapsed. This paragraph is included for purposes of

notice only and is not intended to actually assert a claim under the Georgia FBPA.

COUNT II

BREACH OF CONTRACT

(BASED ON GEORGIA LAW)



668. This claim is brought on behalf of the Georgia Subclass.












- 238 -

















COUNT III


(BASED ON GEORGIA LAW)




- 239 -

673. This claim is brought on behalf of the Georgia Subclass.





















- 240 -












from defects.










- 241 -








members.














- 242 -






















- 243 -






















- 244 -






















- 245 -






















- 246 -



N. Claims Brought on Behalf of the Hawaii Subclass

COUNT I

UNFAIR AND DECEPTIVE ACTS IN VIOLATION OF HAWAII LAW

(HAW. REV. STAT. § 480 ET SEQ.)



557. This claim is brought on behalf of the Hawaii Subclass.

569. Each Defendant is a “person” under Haw. Rev. Stat. § 480-1.

570. Class Members are “consumer[s]” as defined by Haw. Rev. Stat.

§ 480-1, who purchased or leased one or more Affected Vehicles.

571. The Defendants’ acts or practices as set forth above occurred in the

conduct of trade or commerce.

572. Haw. Rev. Stat. § 480-2(a) prohibits “unfair methods of competition

and unfair or deceptive acts or practices in the conduct of any trade or commerce.”







- 247 -



















described above.


- 248 -








trade or commerce.





Subclass.


violated Haw. Rev. Stat. § 480 et seq.





conditions;


- 249 -


and/or













from defects.

701. Pursuant to Haw. Rev. Stat. § 480-13, Plaintiffs and the Hawaii

Subclass seek monetary relief against the Defendants measured as the greater of (a)

$1,000 and (b) threefold actual damages in an amount to be determined at trial.

702. Under Haw. Rev. Stat. § 480-13.5, Plaintiffs seek an additional award

against the Defendants of up to $10,000 for each violation directed at a Hawaiian


- 250 -

elder. The Defendants knew or should have known that their conduct was directed

to one or more Class Members who are elders. The Defendants’ conduct caused

one or more of these elders to suffer a substantial loss of property set aside for

retirement or for personal or family care and maintenance, or assets essential to the

health or welfare of the elder. One or more Hawaii Subclass members who are

elders are substantially more vulnerable to the Defendants’ conduct because of age,

poor health or infirmity, impaired understanding, restricted mobility, or disability,

and each of them suffered substantial physical, emotional, or economic damage

resulting from the Defendants’ conduct.

COUNT II


(BASED ON HAWAII LAW)











- 251 -






















- 252 -





from defects.
















- 253 -


members.




















- 254 -






















- 255 -





















- 256 -





















- 257 -




















- 258 -

COUNT III

BREACH OF CONTRACT

(BASED ON HAWAII LAW)




















- 259 -












O. Claims Brought on Behalf of the Idaho Subclass

COUNT I

VIOLATIONS OF THE IDAHO CONSUMER PROTECTION ACT

(IDAHO CODE § 48-601 ET SEQ.)


forth herein.

729. Plaintiffs bring this Count on behalf of the Idaho Subclass.

730. Each Defendant is a “person” under the Idaho Consumer Protection

Act (“Idaho CPA”), Idaho Code § 48-602(1).


- 260 -

731. The Defendants’ acts or practices as set forth above occurred in the

conduct of “trade” or “commerce” under Idaho Code § 48-602(2).

732. Idaho Code § 48-603 prohibits the following conduct in trade or

commerce: engaging in any act or practice which is otherwise misleading, false, or

deceptive to the consumer; and engaging in any unconscionable method, act or

practice in the conduct of trade or commerce, as provided in section 48-603C.
















- 261 -










described above.








trade or commerce.




- 262 -



Subclass.


violated the Idaho CPA.





conditions;


and/or










- 263 -





from defects.









omissions.




745. Plaintiffs also seek attorneys’ fees and any other just and proper relief

available under the Idaho CPA.


- 264 -

746. Plaintiffs also seek punitive damages against the Defendants because

the Defendants’ conduct evidences an extreme deviation from reasonable

standards. The Defendants’ unlawful conduct constitutes malice, oppression, and

fraud warranting punitive damages.

COUNT II

BREACH OF CONTRACT

(BASED ON IDAHO LAW)



748. Plaintiffs bring this Count on behalf of the Idaho Subclass.













- 265 -
















COUNT III


(BASED ON IDAHO LAW)


forth herein.

753. This claim is brought on behalf of the Idaho Subclass.


- 266 -






















- 267 -











from defects.










- 268 -








members.














- 269 -






















- 270 -






















- 271 -






















- 272 -






















- 273 -



P. Claims Brought on Behalf of the Illinois Subclass

COUNT I

VIOLATION OF THE ILLINOIS CONSUMER FRAUD AND

DECEPTIVE BUSINESS PRACTICES ACT

(815 ILL. COMP. STAT. 505/1 ET SEQ. AND

720 ILL. COMP. STAT. 295/1A)


forth herein.

773. This claim is brought on behalf of the Illinois Subclass.

774. Each Defendant is a “person” as that term is defined in 815 Ill. Comp.

Stat. 505/1(c).

775. Plaintiffs and the Subclass members are “consumers” as that term is

defined in 815 Ill. Comp. Stat. 505/1(e).

776. The Illinois Consumer Fraud and Deceptive Business Practices Act

(“Illinois CFA”) prohibits “unfair or deceptive acts or practices, including but not

limited to the use or employment of any deception, fraud, false pretense, false

promise, misrepresentation or the concealment, suppression or omission of any

material fact, with intent that others rely upon the concealment, suppression or

omission of such material fact … in the conduct of trade or commerce … whether


- 274 -

any person has in fact been misled, deceived or damaged thereby.” 815 Ill. Comp.

Stat. 505/2.




















- 275 -






described above.








trade or commerce.





Subclass.


- 276 -


violated the Illinois CFA.





conditions;


and/or













- 277 -


from defects.









omissions.




789. Pursuant to 815 Ill. Comp. Stat. 505/10a(a), Plaintiffs and the

Subclass members seek monetary relief against the Defendants in the amount of

actual damages, as well as punitive damages because the Defendants acted with

fraud and/or malice and/or was grossly negligent.

790. Plaintiffs also seek punitive damages, attorneys’ fees, and any other

just and proper relief available under 815 Ill. Comp. Stat. § 505/1 et seq.


- 278 -

COUNT II

BREACH OF CONTRACT

(BASED ON ILLINOIS LAW)



792. Plaintiffs bring this Count on behalf of the Illinois Subclass.

















- 279 -












COUNT III


(BASED ON ILLINOIS LAW)



797. This claim is brought on behalf of the Illinois Subclass.






- 280 -






















- 281 -







from defects.















- 282 -



members.



















- 283 -






















- 284 -






















- 285 -





















- 286 -




















- 287 -

Q. Claims Brought on Behalf of the Kansas Subclass

COUNT I

VIOLATIONS OF THE KANSAS CONSUMER PROTECTION ACT

(KAN. STAT. ANN. § 50-623 ET SEQ.)


forth herein.

817. Plaintiffs bring this Count on behalf of the Kansas Subclass.

645. Each Defendant is a “supplier” under the Kansas Consumer Protection

Act (“Kansas CPA”), Kan. Stat. Ann. § 50-624(l).

750. Kansas Class Members are “consumers,” within the meaning of Kan.

Stat. Ann. § 50-624(b), who purchased or leased one or more Affected Vehicles.

751. The sale of the Affected Vehicles to the Kansas Class Members was a

“consumer transaction” within the meaning of Kan. Stat. Ann. § 50-624(c).

752. The Kansas CPA states “[n]o supplier shall engage in any deceptive act

or practice in connection with a consumer transaction,” Kan. Stat. Ann. § 50-

626(a), and that deceptive acts or practices include: (1) knowingly making

representations or with reason to know that “(A) Property or services have

sponsorship, approval, accessories, characteristics, ingredients, uses, benefits or

quantities that they do not have;” and “(D) property or services are of particular

standard, quality, grade, style or model, if they are of another which differs

materially from the representation;” “(2) the willful use, in any oral or written


- 288 -

representation, of exaggeration, falsehood, innuendo or ambiguity as to a material

fact;” and “(3) the willful failure to state a material fact, or the willful concealment,

suppression or omission of a material fact.” The Kansas CPA also provides that

“[n]o supplier shall engage in any unconscionable act or practice in connection

with a consumer transaction.” Kan. Stat. Ann. § 50-627(a).

















- 289 -









described above.








trade or commerce.




- 290 -



Subclass.


violated the Kansas CPA.





conditions;


and/or










- 291 -





from defects.









omissions.




754. Pursuant to Kan. Stat. Ann. § 50-634, Plaintiffs and the Kansas Class

seek monetary relief against the Defendants measured as the greater of (a) actual


- 292 -


amount of $10,000 for each Plaintiff and Kansas Class member.

772. Plaintiffs also seek an order enjoining the Defendants’ unfair,

unlawful, and/or deceptive practices, declaratory relief, attorneys’ fees, and any

other just and proper relief available under Kan. Stat. Ann. § 50-623 et seq.

COUNT II


(BASED ON KANSAS LAW)



830. This claim is brought on behalf of the Kansas Subclass.











- 293 -






















- 294 -


from defects.
















members.




- 295 -





















- 296 -






















- 297 -






















- 298 -






















- 299 -














COUNT III

BREACH OF CONTRACT

(BASED ON KANSAS LAW)



850. Plaintiffs bring this Count on behalf of the Kansas Subclass.




- 300 -






















- 301 -





R. Claims Brought on Behalf of the Kentucky Subclass

COUNT I

VIOLATIONS OF THE KENTUCKY CONSUMER PROTECTION ACT

(KY. REV. STAT. ANN. § 367.110 ET SEQ.)


forth herein.

855. Plaintiffs bring this Count on behalf of the Kentucky Subclass.

856. Each Defendant, each Plaintiff, and each member of the Kentucky

Subclass is a “person” within the meaning of the Ky. Rev. Stat. Ann. § 367.110(1).

857. The Defendants engaged in “trade” or “commerce” within the

meaning of Ky. Rev. Stat. Ann. § 367.110(2).

858. The Kentucky Consumer Protection Act (“Kentucky CPA”) makes

unlawful “[u]nfair, false, misleading, or deceptive acts or practices in the conduct

of any trade or commerce.” Ky. Rev. Stat. Ann. § 367.170(1). In the course of





- 302 -


than a reasonable consumer would expect in light of the Defendants’ advertising


pollutants, including NOx, as described above. Accordingly, Defendants engaged

in deceptive business practices prohibited by the Kentucky CPA.

















- 303 -









described above.








trade or commerce.




- 304 -



Subclass.


violated the Kentucky CPA.





conditions;


and/or










- 305 -





from defects.









omissions.




871. Pursuant to Ky. Rev. Stat. Ann. § 367.220, Plaintiffs and the Subclass

seek to recover actual damages in an amount to be determined at trial; declaratory


- 306 -

relief; attorneys’ fees; and any other just and proper relief available under Ky. Rev.

Stat. Ann. § 367.220.

COUNT II

BREACH OF CONTRACT

(BASED ON KENTUCKY LAW)



873. Plaintiffs bring this Count on behalf of the Kentucky Subclass.














- 307 -






during normal driving conditions, and that they were thus less valuable than






COUNT III

FRAUD BY OMISSION

(BASED ON KENTUCKY LAW)


forth herein.

878. This claim is brought on behalf of the Kentucky Subclass.






- 308 -






















- 309 -







from defects.















- 310 -



members.



















- 311 -






















- 312 -






















- 313 -





















- 314 -




















- 315 -

S. Claims Brought on Behalf of the Louisiana Subclass

COUNT I

VIOLATION OF THE LOUISIANA UNFAIR TRADE PRACTICES AND

CONSUMER PROTECTION LAW

(LA. STAT. ANN. § 51:1401 ET SEQ.)



898. This claim is brought only on behalf of members of the Louisiana

Subclass.

689. The Defendants, Plaintiffs, and the Louisiana Subclass are “persons”

within the meaning of the La. Stat. Ann. § 51:1402(8).

836. Plaintiffs and the Louisiana Subclass are “consumers” within the

meaning of La. Stat. Ann. § 51:1402(1).

837. The Defendants engaged in “trade” or “commerce” within the

meaning of La. Stat. Ann. § 51:1402(9).

838. The Louisiana Unfair Trade Practices and Consumer Protection Law

(“Louisiana CPL”) makes unlawful “deceptive acts or practices in the conduct of

any trade or commerce.” La. Stat. Ann. § 51:1405(A).





- 316 -





















- 317 -


described above.








trade or commerce.





Subclass.


violated the Louisiana CPL.




- 318 -



conditions;


and/or













from defects.


- 319 -


Louisiana CPL, Plaintiffs and the Louisiana Subclass have suffered injury-in-fact

and/or actual damage.

909. Pursuant to La. Stat. Ann. § 51:1409, Plaintiffs and the Louisiana

Subclass seek to recover actual damages in an amount to be determined at trial;

treble damages for the Defendants’ knowing violations of the Louisiana CPL; an

order enjoining the Defendants’ unfair, unlawful, and/or deceptive practices;

declaratory relief; attorneys’ fees; and any other just and proper relief available

under La. Stat. Ann. § 51:1409.

COUNT II


(BASED ON LOUISIANA LAW)



911. This claim is brought on behalf of the Louisiana Subclass.








- 320 -






















- 321 -





from defects.
















- 322 -


members.




















- 323 -






















- 324 -





















- 325 -





















- 326 -




















- 327 -

COUNT III

BREACH OF CONTRACT

(BASED ON LOUISIANA LAW)



931. This claim is brought on behalf of the Louisiana Subclass.

















- 328 -












T. Claims Brought on Behalf of the Maine Subclass

COUNT I

VIOLATION OF MAINE UNFAIR TRADE PRACTICES ACT

(ME. REV. STAT. ANN. TIT. 5 § 205-A ET SEQ.)



936. Plaintiffs intend to assert a claim under the Maine Unfair Trade

Practices Act (“Maine UTPA”) which makes unlawful “[u]nfair methods of

competition and unfair or deceptive acts or practices in the conduct of any trade or

commerce.” Me. Rev. Stat. Ann. tit. 5 § 207. Plaintiffs will make a demand in


- 329 -

satisfaction of Me. Rev. Stat. Ann. tit. 5, § 213(A), and may amend this Complaint

to assert claims under the Maine UTPA once the required 30 days have elapsed.

This paragraph is included for purposes of notice only and is not intended to

actually assert a claim under the Maine UTPA.

COUNT II


(BASED ON MAINE LAW)



938. This claim is brought on behalf of the Maine Subclass.













- 330 -




















from defects.


- 331 -
















members.






- 332 -





















- 333 -






















- 334 -






















- 335 -






















- 336 -












COUNT III

BREACH OF CONTRACT

(BASED ON MAINE LAW)



958. This claim is brought on behalf of the Maine Subclass.






- 337 -






















- 338 -



U. Claims Brought on Behalf of the Maryland Subclass

COUNT I

VIOLATIONS OF THE MARYLAND CONSUMER PROTECTION ACT

(MD. CODE ANN. COM. LAW § 13-101 ET SEQ.)



963. This claim is brought only on behalf of members of the Maryland

Subclass.

964. Each of the Defendants, Plaintiffs, and the Maryland Subclass are

“persons” within the meaning of Md. Code Ann. Com. Law § 13-101(h).

965. The Maryland Consumer Protection Act (“Maryland CPA”) provides

that a person may not engage in any unfair or deceptive trade practice in the sale of

any consumer good. Md. Com. Law Code § 13-303. In the course of Defendants’

business, they willfully failed to disclose and actively concealed that the NOx


driving conditions, that the emissions controls were defective, that the vehicles

have a “Defeat Device,” and that the Affected Vehicles emitted unlawfully high

levels of pollutants, including NOx, as described above. Accordingly, Defendants

engaged in unfair and deceptive trade practices. Defendants’ acts and practices


- 339 -

offend public policy; were immoral, unethical, oppressive, or unscrupulous; caused

substantial injury to consumers; had the capacity, tendency or effect of deceiving

or misleading consumers; failed to state a material fact that deceives or tends to

deceive; and constitute deception, fraud, false pretense, false premise,

misrepresentation, or knowing concealment, suppression, or omission of any

material fact with the intent that a consumer rely on the same in connection

therewith.















- 340 -











described above.








trade or commerce.


- 341 -





Subclass.


violated the Maryland CPA.





conditions;


and/or








- 342 -







from defects.









omissions.





- 343 -

978. Pursuant to Md. Code Ann. Com. Law § 13-408, Plaintiffs and the

Maryland Subclass seek actual damages, attorneys’ fees, and any other just and

proper relief available under the Maryland CPA.

COUNT II

BREACH OF CONTRACT

(BASED ON MARYLAND LAW)



980. Plaintiffs bring this Count on behalf of the Maryland Subclass

members.












- 344 -














COUNT III


(BASED ON MARYLAND LAW)



985. This claim is brought on behalf of the Maryland Subclass.




- 345 -






















- 346 -









from defects.












- 347 -






members.















- 348 -






















- 349 -





















- 350 -






















- 351 -






















- 352 -



V. Claims Brought on Behalf of the Massachusetts Subclass

COUNT I

VIOLATIONS OF THE MASSACHUSETTS CONSUMER

PROTECTION ACT

(MASS. GEN. LAWS CH. 93A)



1005. Plaintiffs intend to assert a claim under the Massachusetts Consumer

Protection Act (“MCPA”), which makes it unlawful to engage in any “[u]nfair

methods of competition or deceptive acts or practices in the conduct of any trade or

commerce.” Mass. Gen. Laws ch. 93A, § 2(1). Plaintiffs will make a demand in

satisfaction of Mass. Gen. Laws ch. 93A, § 9(3), and may amend this Complaint to

assert claims under the MCPA once the required 30 days have elapsed. This

paragraph is included for purposes of notice only and is not intended to actually

assert a claim under the MCPA.

COUNT II

BREACH OF CONTRACT

(BASED ON MASSACHUSETTS LAW)




- 353 -

1007. Plaintiffs bring this Count on behalf of the Massachusetts Subclass

members.




















- 354 -


rendering each Affected Vehicle non-EPA-compliant, and that they were thus less

valuable than vehicles not equipped with the Adsorber Engine.





COUNT III


(BASED ON MASSACHUSETTS LAW)



1012. This claim is brought on behalf of the Massachusetts Subclass.









- 355 -






















- 356 -




from defects.
















members.


- 357 -






















- 358 -






















- 359 -






















- 360 -






















- 361 -















W. Claims Brought on Behalf of the Minnesota Subclass

COUNT I

VIOLATION OF THE MINNESOTA PREVENTION OF CONSUMER

FRAUD ACT

(MINN. STAT. § 325F.68 ET SEQ.)


forth herein.


- 362 -

1032. This claim is brought on behalf of the Minnesota Subclass.

1033. The Affected Vehicles constitute “merchandise” within the meaning

of Minn. Stat. § 325F.68(2).

1034. The Minnesota Prevention of Consumer Fraud Act (“Minnesota

CFA”) prohibits “[t]he act, use, or employment by any person of any fraud, false

pretense, false promise, misrepresentation, misleading statement or deceptive

practice, with the intent that others rely thereon in connection with the sale of any

merchandise, whether or not any person has in fact been misled, deceived, or

damaged thereby.” Minn. Stat. § 325F.69(1). The Minnesota CFA also prohibits

the dissemination, directly or indirectly, of an advertisement “of any sort regarding

merchandise,” where that advertisement contains “any material assertion,

representation, or statement of fact which is untrue, deceptive, or misleading.”

Minn. Stat. § 325F.67. In the course of Defendants’ business, they willfully failed

to disclose and actively concealed that the NOx reduction system in the Affected




expect in light of Defendants’ advertising campaign, and that the Affected


above. Accordingly, Defendants used or employed a fraud, false pretense, false


- 363 -

promise, misrepresentation, misleading statement or deceptive practice, with the

intent that others rely thereon in connection with the sale of any merchandise,

whether or not any person has in fact been misled, deceived, or damaged thereby

and disseminated advertisements containing material assertions, representations, or

statements of fact which were untrue, deceptive, or misleading, all in violation of

the Minnesota CFA.
















- 364 -










described above.








trade or commerce.




- 365 -



Subclass.


violated the Minnesota CFA.





conditions;


and/or










- 366 -





from defects.












1047. Pursuant to Minn. Stat. § 8.31(3a), Plaintiffs and the Minnesota

Subclass seek actual damages, attorneys’ fees, and any other just and proper relief

available under the Minnesota CFA.


- 367 -

1048. Plaintiffs also seek punitive damages under Minn. Stat. § 549.20(1)(a)

given the clear and convincing evidence that Defendants’ acts show deliberate

disregard for the rights of others.

COUNT II

BREACH OF CONTRACT

(BASED ON MINNESOTA LAW)



1050. Plaintiffs bring this Count on behalf of the Minnesota Subclass.














- 368 -












COUNT III


(BASED ON MINNESOTA LAW)



1055. This claim is brought on behalf of the Minnesota Subclass.






- 369 -






















- 370 -







from defects.















- 371 -



members.



















- 372 -






















- 373 -






















- 374 -





















- 375 -




















- 376 -

X. Claims Brought on Behalf of the Missouri Subclass

COUNT I

VIOLATIONS OF THE MISSOURI MERCHANDISING PRACTICES ACT

(MO. REV. STAT. § 407.010 ET SEQ.)


forth herein.

1075. Plaintiffs bring this Count on behalf of the Missouri Subclass.

1076. Each of the Defendants, Plaintiffs, and the Missouri Subclass are

“persons” within the meaning of Mo. Rev. Stat. § 407.010(5).

1077. Each of the Defendants engaged in “trade” or “commerce” in the State

of Missouri within the meaning of Mo. Rev. Stat. § 407.010(7).

1078. The Missouri Merchandising Practices Act (“Missouri MPA”) makes

unlawful the “act, use or employment by any person of any deception, fraud, false

pretense, misrepresentation, unfair practice, or the concealment, suppression, or

omission of any material fact in connection with the sale or advertisement of any

merchandise.” Mo. Rev. Stat. § 407.020. In the course of Defendants’ business,

they willfully failed to disclose and actively concealed that the NOx reduction


conditions, that the Affected Vehicles emitted far more pollutants than gasoline-

powered vehicles, that the Affected Vehicles emit far more pollution than a

reasonable consumer would expect in light of Defendants’ advertising campaign,


- 377 -

and that the Affected Vehicles emitted unlawfully high levels of pollutants,

including NOx, as described above. Accordingly, Defendants used or employed

deception, fraud, false pretense, false promise, misrepresentation, unfair practice or

the concealment, suppression, or omission of any material fact in connection with

the sale or advertisement of any merchandise in trade or commerce, in violation of

the Missouri MPA. Defendants’ conduct offends public policy; is unethical,

oppressive, or unscrupulous; and presents a risk of, or causes, substantial injury to

consumers.














- 378 -












described above.








trade or commerce.


- 379 -





Subclass.


violated the Missouri MPA.





conditions;


and/or








- 380 -







from defects.









omissions.





- 381 -

1091. The Defendants are liable to Plaintiffs and the Missouri Subclass for

damages in amounts to be proven at trial, including attorneys’ fees, costs, and

punitive damages, and any other just and proper relief under Mo. Rev. Stat.

§ 407.025.

COUNT II

BREACH OF CONTRACT

(BASED ON MISSOURI LAW)



1093. Plaintiffs bring this Count on behalf of the Missouri Subclass

members.












- 382 -














COUNT III


(BASED ON MISSOURI LAW)



1098. This claim is brought on behalf of the Missouri Subclass.




- 383 -






















- 384 -









from defects.












- 385 -






members.















- 386 -






















- 387 -





















- 388 -






















- 389 -






















- 390 -



Y. Claims Brought on Behalf of the Montana Subclass

COUNT I

VIOLATION OF MONTANA UNFAIR TRADE PRACTICES AND

CONSUMER PROTECTION ACT OF 1973

(MONT. CODE ANN. § 30-14-101 ET SEQ.)



1118. This claim is brought only on behalf of the Montana Subclass.

1119. Each of the Defendants, Plaintiffs, and the Montana Subclass are

“persons” within the meaning of Mont. Code Ann. § 30-14-102(6).

1120. Montana Subclass members are “consumer[s]” under Mont. Code

Ann. § 30-14-102(1).

1121. The sale or lease of the Affected Vehicles to Montana Subclass

members occurred within “trade and commerce” within the meaning of Mont.

Code Ann. § 30-14-102(8), and Defendants committed deceptive and unfair acts in

the conduct of “trade and commerce” as defined in that statutory section.

1122. The Montana Unfair Trade Practices and Consumer Protection Act

(“Montana CPA”) makes unlawful any “unfair methods of competition and unfair

or deceptive acts or practices in the conduct of any trade or commerce.” Mont.


- 391 -

Code Ann. § 30-14-103. In the course of Defendants’ business, they willfully

failed to disclose and actively concealed that the NOx reduction system in the

Affected Vehicles turns off or is limited during normal driving conditions, that the

Affected Vehicles emitted far more pollutants than gasoline-powered vehicles, that

the Affected Vehicles emit far more pollution than a reasonable consumer would

expect in light of Defendants’ advertising campaign, and that the Affected


above. Accordingly, Defendants engaged in unfair methods of competition and

unfair or deceptive acts or practices in the conduct of any trade or commerce in

violation of the Montana CPA.












- 392 -














described above.








- 393 -


trade or commerce.





Subclass.


violated the Montana CPA.





conditions;


and/or






- 394 -









from defects.









omissions.


- 395 -




1135. Because the Defendants’ unlawful methods, acts, and practices have

caused Plaintiffs and Montana Subclass members to suffer an ascertainable loss of

money and property, Plaintiffs and the Subclass seek from the Defendants actual

damages or $500, whichever is greater, discretionary treble damages, reasonable

attorneys’ fees, and any other relief the Court considers necessary or proper, under

Mont. Code Ann. § 30-14-133.

COUNT II

BREACH OF CONTRACT

(BASED ON MONTANA LAW)



1137. Plaintiffs bring this Count on behalf of the Montana Subclass

members.







- 396 -




















- 397 -

COUNT III


(BASED ON MONTANA LAW)



1142. This claim is brought on behalf of the Montana Subclass.

















- 398 -
















from defects.






- 399 -












members.










- 400 -






















- 401 -






















- 402 -






















- 403 -






















- 404 -







Z. Claims Brought on Behalf of the Nebraska Subclass

COUNT I

VIOLATION OF THE NEBRASKA CONSUMER PROTECTION ACT

(NEB. REV. STAT. § 59-1601 ET SEQ.)



1162. This claim is brought on behalf of the Nebraska Subclass.

1163. The Defendants, Plaintiffs and Nebraska Class Members are

“person[s]” under the Nebraska Consumer Protection Act (“Nebraska CPA”), Neb.

Rev. Stat. § 59-1601(1).

1164. The Defendants’ actions as set forth herein occurred in the conduct of

trade or commerce as defined under Neb. Rev. Stat. § 59-1601(2).

1165. The Nebraska CPA prohibits “unfair or deceptive acts or practices in

the conduct of any trade or commerce.” Neb. Rev. Stat. § 59-1602. The


- 405 -

Defendants’ conduct as set forth herein constitutes unfair or deceptive acts or

practices.




















- 406 -






described above.








trade or commerce.





Subclass.


- 407 -


violated the Nebraska CPA.





conditions;


and/or













- 408 -


from defects.



1176. Because the Defendants’ conduct caused injury to Nebraska Subclass

members’ property through violations of the Nebraska CPA, Plaintiffs and the

Nebraska Subclass seek recovery of actual damages, as well as enhanced damages

up to $1,000, an order enjoining the Defendants’ unfair or deceptive acts and

practices, court costs, reasonable attorneys’ fees, and any other just and proper

relief available under Neb. Rev. Stat. § 59-1609.

COUNT II


(BASED ON NEBRASKA LAW)


forth herein.

1178. Plaintiffs bring this Count on behalf of the Nebraska Subclass.







- 409 -






















- 410 -






from defects.
















- 411 -


members.




















- 412 -






















- 413 -





















- 414 -





















- 415 -




















- 416 -

COUNT III

BREACH OF CONTRACT

(BASED ON NEBRASKA LAW)


forth herein.

1198. Plaintiffs bring this Count on behalf of the Nebraska Subclass.

















- 417 -









AA. Claims Brought on Behalf of the Nevada Subclass

COUNT I

VIOLATIONS OF THE NEVADA DECEPTIVE TRADE PRACTICES ACT

(NEV. REV. STAT. § 598.0903 ET SEQ.)


forth herein.

1203. Plaintiffs bring this Count on behalf of the Nevada Subclass.

1204. The Nevada Deceptive Trade Practices Act (“Nevada DTPA”), Nev.

Rev. Stat. § 598.0903 et seq., prohibits deceptive trade practices. Nev. Rev. Stat.

§ 598.0915 provides that a person engages in a “deceptive trade practice” if, in the

course of business or occupation, the person: “5. Knowingly makes a false

representation as to the characteristics, ingredients, uses, benefits, alterations or

quantities of goods or services for sale or lease or a false representation as to the


- 418 -

sponsorship, approval, status, affiliation or connection of a person therewith”; “7.

Represents that goods or services for sale or lease are of a particular standard,

quality or grade, or that such goods are of a particular style or model, if he or she

knows or should know that they are of another standard, quality, grade, style or

model”; “9. Advertises goods or services with intent not to sell or lease them as

advertised”; or “15. Knowingly makes any other false representation in a

transaction.” Accordingly, Defendants have violated the Nevada DTPA by

knowingly representing that Affected Vehicles have uses and benefits which they

do not have; representing that Affected Vehicles are of a particular standard,

quality, and grade when they are not; advertising Affected Vehicles with the intent

not to sell or lease them as advertised; representing that the subject of a transaction

involving Affected Vehicles has been supplied in accordance with a previous

representation when it has not; and knowingly making other false representations

in a transaction.








- 419 -


















described above.




- 420 -






trade or commerce.





Subclass.


violated the Nevada DTPA.





conditions;


and/or


- 421 -













from defects.









- 422 -


omissions.




1217. Accordingly, Plaintiffs and the Nevada Subclass seek their actual

damages, punitive damages, court costs, attorney’s fees, and all other appropriate

and available remedies under the Nevada DTPA. Nev. Rev. Stat. § 41.600.

COUNT II

BREACH OF CONTRACT

(BASED ON NEVADA LAW)



1219. Plaintiffs bring this Count on behalf of the Nevada Subclass members.









- 423 -












defective design of emissions controls, including information known to FCA,








- 424 -

COUNT III


(BASED ON NEVADA LAW)



1224. This claim is brought on behalf of the Nevada Subclass.

















- 425 -
















from defects.






- 426 -












members.










- 427 -






















- 428 -






















- 429 -






















- 430 -






















- 431 -







BB. Claims Brought on Behalf of the New Hampshire Subclass under New

Hampshire Law

COUNT I

VIOLATION OF N.H. CONSUMER PROTECTION ACT

(N.H. REV. STAT. ANN. § 358-A:1 ET SEQ.)



1244. Plaintiffs bring this claim on behalf of the New Hampshire Subclass.

1245. Plaintiffs, the New Hampshire Subclass, and each of the Defendants

are “persons” under the New Hampshire Consumer Protection Act (“New

Hampshire CPA”), N.H. Rev. Stat. § 358-A:1.


trade or commerce as defined under N.H. Rev. Stat. § 358-A:1.

1247. The New Hampshire CPA prohibits a person, in the conduct of any

trade or commerce, from using “any unfair or deceptive act or practice,” including


- 432 -

“but … not limited to, the following: … (V) Representing that goods or services

have … characteristics, … uses, benefits, or quantities that they do not have;”

“(VII) Representing that goods or services are of a particular standard, quality, or

grade, … if they are of another;” and “(IX) Advertising goods or services with

intent not to sell them as advertised.” N.H. Rev. Stat. § 358-A:2.

















- 433 -









described above.








trade or commerce.




- 434 -



Subclass.


violated the New Hampshire CPA.





conditions;


and/or










- 435 -





from defects.



1258. Because the Defendants’ willful conduct caused injury to New

Hampshire Subclass members’ property through violations of the New Hampshire

CPA, Plaintiffs and the New Hampshire Subclass seek recovery of actual damages

or $1,000, whichever is greater, treble damages, costs and reasonable attorneys’

fees, an order enjoining the Defendants’ unfair and/or deceptive acts and practices,

and any other just and proper relief under N.H. Rev. Stat. § 358-A:10.

COUNT II


(BASED ON NEW HAMPSHIRE LAW)



1260. Plaintiffs bring this claim on behalf of the New Hampshire Subclass.




- 436 -






















- 437 -









from defects.












- 438 -






members.















- 439 -






















- 440 -





















- 441 -






















- 442 -






















- 443 -



COUNT III

BREACH OF CONTRACT

(BASED ON NEW HAMPSHIRE LAW)



1280. Plaintiffs bring this Count on behalf of the New Hampshire Subclass.














- 444 -














CC. Claims Brought on Behalf of the New Jersey Subclass Under New

Jersey Law

COUNT I

VIOLATIONS OF THE NEW JERSEY CONSUMER FRAUD ACT

(N.J.S.A. § 56:8-1 ET SEQ.)




- 445 -

1285. Plaintiffs bring this Count on behalf of the New Jersey Subclass.

1286. The New Jersey Consumer Fraud Act, N.J.S.A. § 56:8-1 et seq. (“NJ

CFA”), prohibits unfair or deceptive acts or practices in the conduct of any trade or

commerce.


















- 446 -








described above.








trade or commerce.




- 447 -



Subclass.


violated the NJ CFA.





conditions;


and/or










- 448 -





from defects.




the other Class and Subclass members.

1298. Plaintiffs and the other Class and Subclass members were injured and

suffered ascertainable loss, injury-in-fact, and/or actual damage as a proximate

result of the Defendants’ conduct in that Plaintiffs and the other Class and Subclass

members overpaid for their Affected Vehicles and did not receive the benefit of

their bargain, and their Affected Vehicles have suffered a diminution in value.

These injuries are the direct and natural consequence of the Defendants’

misrepresentations and omissions.





- 449 -

1300. Pursuant to N.J.S.A. § 56:8-20, Plaintiffs will serve the New Jersey

Attorney General with a copy of this Complaint within 10 days of filing.

COUNT II

BREACH OF CONTRACT

(BASED ON NEW JERSEY LAW)







driving conditions caused Plaintiffs and the other Class members to make their


and omissions, Plaintiffs and the other Class members would not have purchased

or leased these Affected Vehicles, would not have purchased or leased these

Affected Vehicles at the prices they paid, and/or would have purchased or leased

less expensive alternative vehicles that did not contain the Adsorber Engine and

which were not marketed as including such a system. Accordingly, Plaintiffs and

the other Class members overpaid for their Affected Vehicles and did not receive



- 450 -



by, among other things, selling or leasing to Plaintiffs and the other New Jersey

Class members defective Affected Vehicles and by misrepresenting or failing to

disclose that the NOx reduction system in the Affected Vehicles turns off or is

limited during normal driving conditions, and is thus less valuable than vehicles

not equipped with the Adsorber Engine.


Plaintiffs and the Class have been damaged in an amount to be proven at trial,



COUNT III


(BASED ON NEW JERSEY LAW)









- 451 -






















- 452 -







from defects.















- 453 -



members.



















- 454 -






















- 455 -






















- 456 -





















- 457 -




















- 458 -

DD. Claims Brought on Behalf of the New Mexico Subclass

COUNT I

VIOLATIONS OF THE NEW MEXICO UNFAIR

TRADE PRACTICES ACT

(N.M. STAT. ANN. § 57-12-1 ET SEQ.)



1327. This claim is brought on behalf of the New Mexico Subclass.

1328. The Defendants, Plaintiffs and New Mexico Subclass members are or

were “person[s]” under the New Mexico Unfair Trade Practices Act (“New

Mexico UTPA”), N.M. Stat. Ann. § 57-12-2. 010549-11 816608 V1


trade or commerce as defined under N.M. Stat. Ann. § 57-12-2.

1330. The New Mexico UTPA makes unlawful “a false or misleading oral or

written statement, visual description or other representation of any kind knowingly

made in connection with the sale, lease, rental or loan of goods or services … by a

person in the regular course of the person’s trade or commerce, that may, tends to

or does deceive or mislead any person,” including but not limited to “failing to

state a material fact if doing so deceives or tends to deceive.” N.M. Stat. Ann.

§ 57-12- 2(D). The Defendants’ acts and omissions described herein constitute

unfair or deceptive acts or practices under N.M. Stat. Ann. § 57-12-2(D). In


- 459 -

addition, the Defendants’ actions constitute unconscionable actions under N.M.

Stat. Ann. § 57-12-2(E), since they took advantage of the lack of knowledge,

ability, experience, and capacity of the New Mexico Subclass members to a

grossly unfair degree.


















- 460 -








described above.








trade or commerce.




- 461 -



Subclass.


violated the New Mexico UTPA.





conditions;


and/or










- 462 -





from defects.







New Mexico UTPA, Plaintiffs and the New Mexico Subclass have suffered injury-


1343. New Mexico Subclass members seek punitive damages against the

Defendants because the Defendants’ conduct was malicious, willful, reckless,

wanton, fraudulent and in bad faith. Because the Defendants’ conduct was

malicious, willful, reckless, wanton, fraudulent and in bad faith, it warrants

punitive damages.

1344. Because the Defendants’ unconscionable, willful conduct caused

actual harm to New Mexico Class Members, Plaintiffs and the New Mexico


- 463 -

Subclass seek recovery of actual damages or $100, whichever is greater,

discretionary treble damages, punitive damages, and reasonable attorneys’ fees and

costs, as well as all other proper and just relief available under N.M. Stat. Ann. §

57-12-10.

COUNT II


(BASED ON NEW MEXICO LAW)



1346. Plaintiffs bring this Count on behalf of the New Mexico Subclass.













- 464 -




















from defects.


- 465 -
















members.






- 466 -





















- 467 -






















- 468 -






















- 469 -






















- 470 -












COUNT III

BREACH OF CONTRACT

(BASED ON NEW MEXICO LAW)



1366. This claim is brought on behalf of the New Mexico Subclass.






- 471 -





















- 472 -



EE. Claims Brought on Behalf of the New York Subclass

COUNT I

VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW § 349

(N.Y. GEN. BUS. LAW § 349)



1371. This claim is brought on behalf of the New York Subclass.

1372. New York’s General Business Law § 349 makes unlawful

“[d]eceptive acts or practices in the conduct of any business, trade or commerce.”

In the course of Defendants’ business, they willfully failed to disclose and actively

concealed that the NOx reduction system in the Affected Vehicles turns off or is

limited during normal driving conditions, that the Affected Vehicles emitted far

more pollutants than gasoline-powered vehicles, that the Affected Vehicles emit

far more pollution than a reasonable consumer would expect in light of

Defendants’ advertising campaign, and that the Affected Vehicles emitted

unlawfully high levels of pollutants, including NOx, as described above. The

challenged act or practice was “consumer-oriented;” (2) that the act or practice was

misleading in a material way; and (3) Plaintiffs suffered injury as a result of the


- 473 -

deceptive act or practice. Accordingly, Defendants have violated General Business

Law § 349.




















- 474 -






described above.








trade or commerce.





Subclass.


- 475 -


violated New York’s General Business Law § 349.





conditions;


and/or













- 476 -


from defects.









omissions.




1385. Pursuant to N.Y. Gen. Bus. Law § 349(h), Plaintiffs and each

Subclass member may recover actual damages, in addition to three times actual

damages up to $1,000 for the Defendants’ willful and knowing violation of N.Y.

Gen. Bus. Law § 349.


- 477 -

COUNT II

VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW § 350

(N.Y. GEN. BUS. LAW § 350)


forth herein.


1388. New York’s General Business Law § 350 makes unlawful “[f]alse

advertising in the conduct of any business, trade or commerce[.]” False

advertising includes “advertising, including labeling, of a commodity … if such

advertising is misleading in a material respect,” taking into account “the extent to

which the advertising fails to reveal facts material in the light of … representations

[made] with respect to the commodity.” N.Y. Gen. Bus. Law § 350-a.

1389. Defendants caused to be made or disseminated throughout New York,

through advertising, marketing, and other publications, statements that were untrue

or misleading, and which were known, or which by the exercise of reasonable care

should have been known to Defendants, to be untrue and misleading to consumers,

including Plaintiffs and the other Subclass members.

1390. Defendants have violated N.Y. Gen. Bus. Law § 350 because the

misrepresentations and omissions alleged herein, including but not limited to

Defendants’ failure to disclose that the NOx reduction system in the Affected



- 478 -


Subclass members were deceived by Defendants’ failure to disclose that the NOx




described above.

1392. Plaintiffs and Subclass members reasonably relied upon Defendants’

false misrepresentations. They had no way of knowing that Defendants’

representations were false and gravely misleading. As alleged herein, Defendants

engaged in extremely sophisticated methods of deception. Plaintiffs and Subclass

members did not, and could not, unravel Defendants’ deception on their own.

1393. Defendants’ actions as set forth above occurred in the conduct of trade

or commerce.

1394. Defendants’ unfair or deceptive acts or practices were likely to and

did in fact deceive reasonable consumers.

1395. Defendants intentionally and knowingly misrepresented material facts

regarding the Affected Vehicles with an intent to mislead Plaintiffs and the

Subclass.

1396. Defendants knew or should have known that their conduct violated

General Business Law § 350.


- 479 -

1397. Defendants owed Plaintiffs and the Subclass a duty to disclose the

truth about their emissions systems manipulation because Defendants:



conditions;


and/or





1398. Defendants had a duty to disclose that the NOx reduction system in

the Affected Vehicles turns off or is limited during normal driving conditions, and

that these Affected Vehicles were defective, employed a “Defeat Device,” emitted

pollutants at a much higher rate than gasoline-powered vehicles, had emissions that

far exceeded those expected by a reasonable consumer, and were non-EPA-

compliant and unreliable, because Plaintiffs and the other Subclass members relied

on Defendants’ material representations that the Affected Vehicles they were

purchasing were reduced-emission vehicles, efficient, and free from defects.


- 480 -

1399. Defendants’ conduct proximately caused injuries to Plaintiffs and the

other Subclass members.










1402. Plaintiffs and the other Subclass members are entitled to recover their

actual damages or $500, whichever is greater. Because Defendants acted willfully

or knowingly, Plaintiffs and the other Subclass members are entitled to recover

three times actual damages, up to $10,000.

COUNT III

BREACH OF CONTRACT

(BASED ON NEW YORK LAW)




- 481 -

1404. Plaintiffs bring this Count on behalf of the New York Subclass

members.




















- 482 -








COUNT IV


(BASED ON NEW YORK LAW)












- 483 -






















- 484 -




from defects.
















members.


- 485 -






















- 486 -






















- 487 -






















- 488 -






















- 489 -















FF. Claims Brought on Behalf of the North Carolina Subclass

COUNT I

VIOLATIONS OF THE NORTH CAROLINA UNFAIR AND

DECEPTIVE ACTS AND PRACTICES ACT

(N.C. GEN. STAT. § 75-1.1 ET SEQ.)


forth herein.


- 490 -

1429. Plaintiffs bring this Count on behalf of the North Carolina Subclass.

1430. Defendants engaged in “commerce” within the meaning of N.C. Gen.

Stat. § 75-1.1(b).

1431. The North Carolina UDTPA broadly prohibits “unfair or deceptive

acts or practices in or affecting commerce.” N.C. Gen. Stat. § 75-1.1(a). In the

course of Defendants’ business, they willfully failed to disclose and actively

concealed that the NOx reduction system in the Affected Vehicles turns off or is

limited during normal driving conditions, that the Affected Vehicles emitted far

more pollutants than gasoline-powered vehicles, that the Affected Vehicles emit

far more pollution than a reasonable consumer would expect in light of

Defendants’ advertising campaign, and that the Affected Vehicles emitted

unlawfully high levels of pollutants, including NOx, as described above.

Accordingly, Defendants engaged in unfair and deceptive trade practices because

they (1) had the capacity or tendency to deceive, (2) offend public policy, (3) are

immoral, unethical, oppressive or unscrupulous, or (4) cause substantial injury to

consumers.






- 491 -




















described above.


- 492 -








trade or commerce.





Subclass.


violated the North Carolina UDTPA.





conditions;


- 493 -


and/or













from defects.







- 494 -




omissions.




1444. Plaintiffs seek an order for treble their actual damages, court costs,

attorney’s fees, and any other just and proper relief available under the North

Carolina Act, N.C. Gen. Stat. § 75-16.

1445. Plaintiffs also seek punitive damages against the Defendants because

the Defendants’ conduct was malicious, willful, reckless, wanton, fraudulent and in

bad faith.

COUNT II

BREACH OF CONTRACT

(BASED ON NORTH CAROLINA LAW)



1447. Plaintiffs bring this Count on behalf of the North Carolina Subclass

members.


- 495 -





















- 496 -







COUNT III


(BASED ON NORTH CAROLINA LAW)



1452. This claim is brought on behalf of the North Carolina Subclass.











- 497 -






















- 498 -


from defects.
















members.




- 499 -





















- 500 -






















- 501 -






















- 502 -






















- 503 -














GG. Claims Brought on Behalf of the North Dakota Subclass

COUNT I

VIOLATION OF THE NORTH DAKOTA CONSUMER FRAUD ACT

(N.D. CENT. CODE § 51-15-02)



1472. This claim is brought on behalf of the North Dakota Subclass.


- 504 -

1473. Plaintiffs, the North Dakota Subclass members, and each of the

Defendants are “persons” within the meaning of N.D. Cent. Code § 51-15-02(4).

1474. The Defendants engaged in the “sale” of “merchandise” within the

meaning of N.D. Cent. Code § 51-15-02(3), (5).

1475. The North Dakota Consumer Fraud Act (“North Dakota CFA”) makes

unlawful “[t]he act, use, or employment by any person of any deceptive act or

practice, fraud, false pretense, false promise, or misrepresentation, with the intent

that others rely thereon in connection with the sale or advertisement of any

merchandise.” N.D. Cent. Code § 51-15-02. As set forth above and below, the

Defendants committed deceptive acts or practices, with the intent that North

Dakota Subclass members rely thereon in connection with their purchase or lease

of the Affected Vehicles.










- 505 -
















described above.






- 506 -




trade or commerce.





Subclass.


violated the North Dakota CFA.





conditions;


and/or




- 507 -











from defects.







North Dakota CFA, Plaintiffs and the North Dakota Subclass have suffered injury-



- 508 -

1488. North Dakota Subclass members seek punitive damages against the

Defendants because the Defendants’ conduct was egregious. The Defendants’

egregious conduct warrants punitive damages.

1489. Further, the Defendants knowingly committed the conduct described

above, and thus, under N.D. Cent. Code § 51-15-09, the Defendants are liable to

Plaintiffs and the North Dakota Subclass for treble damages in amounts to be

proven at trial, as well as attorneys’ fees, costs, and disbursements. Plaintiffs

further seek an order enjoining the Defendants’ unfair and/or deceptive acts or

practices, and other just and proper available relief under the North Dakota CFA.

COUNT II


(BASED ON NORTH DAKOTA LAW)



1491. Plaintiffs bring this Count on behalf of the North Dakota Subclass.








- 509 -






















- 510 -





from defects.
















- 511 -


members.




















- 512 -






















- 513 -





















- 514 -





















- 515 -




















- 516 -

COUNT III

BREACH OF CONTRACT

(BASED ON NORTH DAKOTA LAW)



1511. This claim is brought on behalf of the North Dakota Subclass.

















- 517 -











HH. Claims Brought on Behalf of the Ohio Subclass

COUNT I

VIOLATIONS OF THE OHIO CONSUMER SALES PRACTICES ACT

(OHIO REV. CODE § 1345.01 ET SEQ.)



1516. This claim is brought on behalf of the Ohio Subclass.

1517. Plaintiffs and the other Ohio Subclass members are “consumers” as

defined by the Ohio Consumer Sales Practices Act, Ohio Rev. Code § 1345.01

(“Ohio CSPA”). Each of the Defendants is a “supplier” as defined by the Ohio


- 518 -

CSPA. Plaintiffs’ and the other Ohio Subclass members’ purchases or leases of

Affected Vehicles were “consumer transactions” as defined by the Ohio CSPA.

1518. The Ohio CSPA, Ohio Rev. Code § 1345.02, broadly prohibits unfair

or deceptive acts or practices in connection with a consumer transaction.

Specifically, and without limitation of the broad prohibition, the Act prohibits

suppliers from representing (i) that goods have characteristics or uses or benefits

which they do not have; (ii) that their goods are of a particular quality or grade

they are not; and (iii) the subject of a consumer transaction has been supplied in

accordance with a previous representation, if it has not. Id. The Defendants’

conduct as alleged above and below constitutes unfair and/or deceptive consumer

sales practices in violation of Ohio Rev. Code § 1345.02.











- 519 -















described above.






- 520 -




trade or commerce.





Subclass.


violated the Ohio CSPA.





conditions;


and/or




- 521 -











from defects.









omissions.


- 522 -




1531. Plaintiffs and the Subclass sustained damages as a result of the

Defendants’ unlawful acts and are, therefore, entitled to damages and other relief

as provided under the Ohio CSPA.

1532. Plaintiffs also seek court costs and attorneys’ fees as a result of

Defendants’ violations of the OCSPA as provided in Ohio Rev. Code § 1345.09.

COUNT II

BREACH OF CONTRACT

(BASED ON OHIO LAW)



1534. Plaintiffs bring this Count on behalf of Ohio Subclass members.









- 523 -











during normal driving conditions, thus rendering each Affected Vehicle less

valuable, than vehicles not equipped with the Adsorber Engine.





COUNT III


(BASED ON OHIO LAW)




- 524 -

1539. This claim is brought on behalf of the Ohio Subclass.





















- 525 -












from defects.










- 526 -








members.














- 527 -






















- 528 -






















- 529 -






















- 530 -






















- 531 -



II. Claims Brought on Behalf of the Oklahoma Subclass

COUNT I

VIOLATION OF OKLAHOMA CONSUMER PROTECTION ACT

(OKLA. STAT. TIT. 15 § 751 ET SEQ.)


forth herein.

1559. Plaintiffs bring this Count on behalf of the Oklahoma Subclass.

1560. Plaintiffs and the Oklahoma Subclass members are “persons” under

the Oklahoma Consumer Protection Act (“Oklahoma CPA”), Okla. Stat. tit. 15

§ 752.

1561. Each of the Defendants is a “person,” “corporation,” or “association”

within the meaning of Okla. Stat. tit. 15 § 15-751(1).

1562. The sale or lease of the Affected Vehicles to the Oklahoma Subclass

members was a “consumer transaction” within the meaning of Okla. Stat. tit. 15

§ 752, and the Defendants’ actions as set forth herein occurred in the conduct of

trade or commerce.

1563. The Oklahoma CPA declares unlawful, inter alia, the following acts

or practices when committed in the course of business: “mak[ing] a false or

misleading representation, knowingly or with reason to know, as to the


- 532 -

characteristics, … uses, [or] benefits, of the subject of a consumer transaction,” or

making a false representation, “knowingly or with reason to know, that the subject

of a consumer transaction is of a particular standard, style or model, if it is of

another or “[a]dvertis[ing], knowingly or with reason to know, the subject of a

consumer transaction with intent not to sell it as advertised;” and otherwise

committing “an unfair or deceptive trade practice.” See Okla. Stat. tit. 15, § 753.
















- 533 -










described above.








trade or commerce.




- 534 -



Subclass.


violated the Oklahoma CPA.





conditions;


and/or










- 535 -





from defects.



1574. Plaintiffs and the Oklahoma Class suffered ascertainable loss caused

by the Defendants’ misrepresentations and concealment of and failure to disclose

material information.

1575. The Defendants’ unlawful acts and practices complained of herein

affect the public interest.


Oklahoma CPA, Plaintiffs and the Oklahoma Class have suffered injury-in-fact


1577. The Defendants’ conduct as alleged herein was unconscionable

because (1) the Defendants, knowingly or with reason to know, took advantage of

consumers reasonably unable to protect their interests because of their age,

physical infirmity, ignorance, illiteracy, inability to understand the language of an

agreement or similar factor; (2) at the time the consumer transaction was entered


- 536 -

into, the Defendants knew or had reason to know that price grossly exceeded the

price at which similar vehicles were readily obtainable in similar transactions by

like consumers; and (3) the Defendants knew or had reason to know that the

transaction the Defendants induced the consumer to enter into was excessively

one-sided in favor of the Defendants.

1578. Because the Defendants’ unconscionable conduct caused injury to

Oklahoma Subclass members, Plaintiffs and the Oklahoma Subclass seek recovery

of actual damages, discretionary penalties up to $2,000 per violation, punitive

damages, and reasonable attorneys’ fees, under Okla. Stat. tit. 15 § 761.1.

Plaintiffs and the Oklahoma Subclass further seek an order enjoining the

Defendants’ unfair and/or deceptive acts or practices, and any other just and proper

relief available under the Oklahoma CPA.

COUNT II


(BASED ON OKLAHOMA LAW)



1580. Plaintiffs bring this Count on behalf of the Oklahoma Subclass.





- 537 -





















- 538 -









from defects.












- 539 -






members.















- 540 -






















- 541 -





















- 542 -






















- 543 -






















- 544 -



COUNT III

BREACH OF CONTRACT

(BASED ON OKLAHOMA LAW)



1600. This claim is brought on behalf of the Oklahoma Subclass.














- 545 -














JJ. Claims Brought on Behalf of the Pennsylvania Subclass

COUNT I

VIOLATIONS OF THE PENNSYLVANIA UNFAIR TRADE PRACTICES

AND CONSUMER PROTECTION LAW

(73 P.S. § 201-1 ET SEQ.)


forth herein.

1605. Plaintiffs bring this Count on behalf of the Pennsylvania Subclass.


- 546 -

1606. Plaintiffs purchased or leased their Affected Vehicle primarily for

personal, family or household purposes within the meaning of 73 P.S. § 201-9.2.

1607. All of the acts complained of herein were perpetrated by Defendants

in the course of trade or commerce within the meaning of 73 P.S. § 201-2(3).

1608. The Pennsylvania Unfair Trade Practices and Consumer Protection

Law (“Pennsylvania CPL”) prohibits unfair or deceptive acts or practices,

including: (i) “Representing that goods or services have … characteristics, …

[b]enefits or qualities that they do not have;” (ii) “Representing that goods or

services are of a particular standard, quality or grade … if they are of another;” (iii)

“Advertising goods or services with intent not to sell them as advertised;” and (iv)

“Engaging in any other fraudulent or deceptive conduct which creates a likelihood

of confusion or misunderstanding.” 73 P.S. § 201-2(4).










- 547 -
















described above.






- 548 -




trade or commerce.





Subclass.


violated the Pennsylvania CPL.





conditions;


and/or




- 549 -











from defects.









omissions.


- 550 -




1621. The Defendants are liable to Plaintiffs and the Pennsylvania Subclass

for treble their actual damages or $100, whichever is greater, and attorneys’ fees

and costs. 73 P.S. § 201-9.2(a). Plaintiffs and the Pennsylvania Class are also

entitled to an award of punitive damages given that the Defendants’ conduct was

malicious, wanton, willful, oppressive, or exhibited a reckless indifference to the

rights of others.

COUNT II

BREACH OF CONTRACT

(BASED ON PENNSYLVANIA LAW)



1623. Plaintiffs bring this Count on behalf of the Pennsylvania Subclass.








- 551 -



















- 552 -

COUNT III


(BASED ON PENNSYLVANIA LAW)


forth herein.

1628. This claim is brought on behalf of the Pennsylvania Subclass.

















- 553 -
















from defects.






- 554 -












members.










- 555 -






















- 556 -






















- 557 -






















- 558 -






















- 559 -







KK. Claims Brought on Behalf of the Rhode Island Subclass

COUNT I

VIOLATION OF THE RHODE ISLAND UNFAIR TRADE PRACTICES

AND CONSUMER PROTECTION ACT

(R.I. GEN. LAWS § 6-13.1 ET SEQ.)


forth herein.

1648. Plaintiffs bring this Count on behalf of the Rhode Island Subclass.

1649. Plaintiffs are persons who purchased or leased one or more Affected

Vehicles primarily for personal, family, or household purposes within the meaning

of R.I. Gen. Laws § 6-13.1-5.2(a).

1650. Rhode Island’s Unfair Trade Practices and Consumer Protection Act

(“Rhode Island CPA”) prohibits “unfair or deceptive acts or practices in the

conduct of any trade or commerce” including: “(v) Representing that goods or

services have sponsorship, approval, characteristics, ingredients, uses, benefits, or


- 560 -

quantities that they do not have”; “(vii) Representing that goods or services are of a

particular standard, quality, or grade, … if they are of another”; “(ix) Advertising

goods or services with intent not to sell them as advertised”; “(xii) Engaging in any

other conduct that similarly creates a likelihood of confusion or of

misunderstanding”; “(xiii) Engaging in any act or practice that is unfair or

deceptive to the consumer”; and “(xiv) Using any other methods, acts or practices

which mislead or deceive members of the public in a material respect.” R.I. Gen.

Laws § 6-13.1-1(6).

1651. The Defendants engaged in unlawful trade practices, including: (1)

representing that the Affected Vehicles have characteristics, uses, benefits, and

qualities which they do not have; (2) representing that the Affected Vehicles are of

a particular standard and quality when they are not; (3) advertising the Affected

Vehicles with the intent not to sell them as advertised; and (4) otherwise engaging

in conduct that is unfair or deceptive and likely to deceive.


trade or commerce.






- 561 -




















described above.


- 562 -








trade or commerce.





Subclass.


violated the Rhode Island CPA.





conditions;


- 563 -


and/or













from defects.



1663. Plaintiffs and the Rhode Island Class suffered ascertainable loss

caused by the Defendants’ misrepresentations and concealment of and failure to

disclose material information. Plaintiffs who purchased the Affected Vehicles


- 564 -

either would have paid less for their vehicles or would not have purchased or

leased them at all.

1654. The Defendants’ unlawful acts and practices complained of herein

affect the public interest.


Rhode Island CPA, Plaintiffs and the Rhode Island Class have suffered injury-in-

fact and/or actual damage.

1656. Plaintiffs and the Rhode Island Class are entitled to recover the greater

of actual damages or $200 pursuant to R.I. Gen. Laws § 6-13.1-5.2(a). Plaintiffs

also seek punitive damages in the discretion of the Court because of the

Defendants’ egregious disregard of consumer and public safety and their long-

running concealment of the serious safety defects and their tragic consequences.

COUNT II


(BASED ON RHODE ISLAND LAW)



1665. Plaintiffs bring this Count on behalf of the Rhode Island Subclass.





- 565 -





















- 566 -









from defects.












- 567 -






members.















- 568 -






















- 569 -





















- 570 -






















- 571 -






















- 572 -



COUNT III

BREACH OF CONTRACT

(BASED ON RHODE ISLAND LAW)



1685. This claim is brought on behalf of the Rhode Island Subclass.














- 573 -














LL. Claims Brought on Behalf of the South Carolina Subclass

COUNT I

VIOLATIONS OF THE SOUTH CAROLINA

UNFAIR TRADE PRACTICES ACT

(S.C. CODE ANN. § 39-5-10 ET SEQ.)



1690. This claim is brought on behalf of the South Carolina Subclass.


- 574 -

1691. Each Defendant is a “person” under S.C. Code Ann. § 39-5-10.

1692. The South Carolina Unfair Trade Practices Act (“South Carolina

UTPA”) prohibits “unfair or deceptive acts or practices in the conduct of any trade

or commerce.” S.C. Code Ann. § 39-5-20(a).


















- 575 -








described above.








trade or commerce.




- 576 -



Subclass.


violated the South Carolina UTPA.





conditions;


and/or










- 577 -





from defects.



1703. Plaintiffs and the South Carolina Class suffered ascertainable loss

caused by the Defendants’ misrepresentations and concealment of and failure to

disclose material information. Plaintiffs who purchased the Affected Vehicles

either would have paid less for their vehicles or would not have purchased or

leased them at all. 1694. The Defendants’ unlawful acts and practices complained

of herein affect the public interest.


South Carolina UTPA, Plaintiffs and the South Carolina Class have suffered

injury-in-fact and/or actual damage.

1705. Pursuant to S.C. Code Ann. § 39-5-140(a), Plaintiffs seek monetary

relief against the Defendants to recover for their economic losses. Because the

Defendants’ actions were willful and knowing, Plaintiffs’ damages should be

trebled. Id.


- 578 -

1706. Plaintiffs further allege that the Defendants’ malicious and deliberate

conduct warrants an assessment of punitive damages because the Defendants

carried out despicable conduct with willful and conscious disregard of the rights

and safety of others, subjecting Plaintiffs and the Class to cruel and unjust hardship

as a result.

COUNT II

VIOLATIONS OF THE SOUTH CAROLINA REGULATION OF

MANUFACTURERS, DISTRIBUTORS, AND DEALERS ACT

(S.C. CODE ANN. § 56-15-10 ET SEQ.)



1708. This claim is brought only on behalf of the South Carolina Subclass.

1709. Each of the Defendants was a “manufacturer” as set forth in S.C.

Code Ann. § 56-15-10, as each was engaged in the business of manufacturing or

assembling new and unused motor vehicles.

1710. Defendants committed unfair or deceptive acts or practices that

violated the South Carolina Regulation of Manufacturers, Distributors, and Dealers

Act (“Dealers Act”), S.C. Code Ann. § 56-15-30.

1711. Defendants engaged in actions which were arbitrary, in bad faith,

unconscionable, and which caused damage to Plaintiffs, the South Carolina

Subclass, and to the public.


- 579 -

1712. Defendants’ bad faith and unconscionable actions include, but are not

limited to: (1) representing that Affected Vehicles have characteristics, uses,

benefits, and qualities which they do not have, (2) representing that Affected

Vehicles are of a particular standard, quality, and grade when they are not, (3)

advertising Affected Vehicles with the intent not to sell them as advertised, (4)

representing that a transaction involving Affected Vehicles confers or involves

rights, remedies, and obligations which it does not, and (5) representing that the

subject of a transaction involving Affected Vehicles has been supplied in

accordance with a previous representation when it has not.

COUNT III


(BASED ON SOUTH CAROLINA LAW)



1714. Plaintiffs bring this Count on behalf of the South Carolina Subclass.








- 580 -






















- 581 -





from defects.
















- 582 -


members.




















- 583 -






















- 584 -





















- 585 -





















- 586 -




















- 587 -

COUNT IV

BREACH OF CONTRACT

(BASED ON SOUTH CAROLINA LAW)



1734. This claim is brought on behalf of the South Carolina Subclass.

















- 588 -











MM. Claims Brought on Behalf of the Tennessee Subclass

COUNT I

VIOLATIONS OF THE TENNESSEE CONSUMER PROTECTION ACT

(TENN. CODE ANN. § 47-18-101 ET SEQ.)


forth herein.

1739. Plaintiffs bring this Count on behalf of the Tennessee Subclass.

1740. Plaintiffs and the Tennessee Subclass are “natural persons” and

“consumers” within the meaning of Tenn. Code Ann. § 47-18-103(2).

1741. Each Defendant is a “person” within the meaning of Tenn. Code Ann.

§ 47-18-103(2).


- 589 -

1742. The Defendants’ conduct complained of herein affected “trade,”

“commerce” or “consumer transactions” within the meaning of Tenn. Code Ann. §

47-18-103(19).

1743. The Tennessee Consumer Protection Act (“Tennessee CPA”)

prohibits “[u]nfair or deceptive acts or practices affecting the conduct of any trade

or commerce,” including but not limited to: “Representing that goods or services

have … characteristics, [or] … benefits … that they do not have…;” “Representing

that goods or services are of a particular standard, quality or grade … if they are of

another;” “Advertising goods or services with intent not to sell them as

advertised;” and “Engaging in any other act or practice which is deceptive to the

consumer or any other person.” Tenn. Code Ann. § 47-18-104. In the course of





than a reasonable consumer would expect in light of Defendants’ advertising


pollutants, including NOx, as described above. Accordingly, Defendants violated

the Tennessee CPA by engaging in unfair or deceptive acts, including representing

that Affected Vehicles have characteristics or benefits that they did not have;


- 590 -

representing that Affected Vehicles are of a particular standard, quality, or grade

when they are of another; advertising Affected Vehicles with intent not to sell them

as advertised; and engaging in acts or practices that are deceptive to consumers.


















- 591 -








described above.








trade or commerce.




- 592 -



Subclass.


violated the Tennessee CPA.





conditions;


and/or










- 593 -





from defects.












1756. Pursuant to Tenn. Code § 47-18-109(a), Plaintiffs and the Tennessee

Subclass seek monetary relief against the Defendants measured as actual damages

in an amount to be determined at trial, treble damages as a result of the


- 594 -

Defendants’ willful or knowing violations, and any other just and proper relief

available under the Tennessee CPA.

COUNT II

BREACH OF CONTRACT

(BASED ON TENNESSEE LAW)



1758. Plaintiffs bring this Count on behalf of the Tennessee Subclass.














- 595 -












COUNT III


(BASED ON TENNESSEE LAW)


forth herein.

1763. This claim is brought on behalf of the Tennessee Subclass.






- 596 -






















- 597 -







from defects.















- 598 -



members.



















- 599 -






















- 600 -






















- 601 -





















- 602 -




















- 603 -

NN. Claims Brought on Behalf of the Texas Subclass

COUNT I

VIOLATIONS OF THE DECEPTIVE TRADE PRACTICES ACT

(TEX. BUS. & COM. CODE § 17.41 ET SEQ.)

1782. The Georgia Fair Business Practices Act (“Georgia FBPA”) declares

“[u]nfair or deceptive acts or practices in the conduct of consumer transactions and

consumer acts or practices in trade or commerce” to be unlawful, Ga. Code. Ann. §

10-1-393(a), including, but not limited to, “representing that goods or services

have sponsorship, approval, characteristics, ingredients, uses, benefits, or

quantities that they do not have,” “[r]epresenting that goods or services are of a

particular standard, quality, or grade … if they are of another,” and “[a]dvertising

goods or services with intent not to sell them as advertised.” Ga. Code. Ann. § 10-

1-393(b). Plaintiffs will make a demand in satisfaction of O.C.G.A. § 10-1-399(b),

and may amend this Complaint to assert claims under the Georgia FBPA once the

required notice period has elapsed. This paragraph is included for purposes of

notice only and is not intended to actually assert a claim under the Georgia FBPA.

COUNT II

BREACH OF CONTRACT

(BASED ON TEXAS LAW)




- 604 -

1784. Plaintiffs bring this Count on behalf of the Texas Subclass members.




and failure to disclose that the Affected Vehicles did not meet and maintain the

advertised MPG rate, caused Plaintiffs and the other Subclass members to make

their purchases or leases of their Affected Vehicles. Absent those

misrepresentations and omissions, Plaintiffs and the other Subclass members










Affected Vehicles and by misrepresenting or failing to disclose that the Affected

Vehicles would not meet and maintain their advertised MPG rate, and by

misrepresenting or failing to disclose that the NOx reduction system in the


- 605 -

Affected Vehicles turns off or is limited during normal driving conditions and the

existence of the Adsorber Engine’s defect and/or defective design of emissions

controls, including information known to FCA, rendering each Affected Vehicle

non-EPA-compliant, and thus less valuable than vehicles not equipped with the

defective Adsorber Engine.





COUNT III


(BASED ON TEXAS LAW)



1789. This claim is brought on behalf of the Texas Subclass.



conditions, that the Affected Vehicles had defective emissions controls, failed to





- 606 -









vehicles, met and maintained the advertised MPG rate, complied with EPA

regulations, and would perform and operate properly when driven in normal usage.



Subclass members were, in fact, defective, not meeting and maintaining the

advertised MPG rate, emitting pollutants at a much higher rate than gasoline-

powered vehicles and at a much higher rate than a reasonable consumer would

expect in light of the Defendants’ advertising campaign, non-EPA-compliant, and

unreliable because the NOx reduction system in the Affected Vehicles turns off or

is limited during normal driving conditions.




- 607 -




expected by a reasonable consumer, were non-EPA-compliant and unreliable, and

failed to meet and maintain the advertised MPG rate, because Plaintiffs and the

other Subclass members relied on the Defendants’ material representations that the

Affected Vehicles they were purchasing were reduced-emission vehicles, efficient,

and free from defects.

1795. As alleged in this Complaint, at all relevant times, the has held out

the Affected Vehicles to be reduced emission, EPA-compliant vehicles. The

Defendants disclosed certain details about the diesel engine, but nonetheless, the

Defendants intentionally failed to disclose the important facts that the NOx



controls, deployed a “Defeat Device,” emitted higher levels of pollutants than







- 608 -

failure to meet and maintain the advertised MPG rate, and non-compliance with














public and consumers. They also emphasized profits and sales above the trust that

Plaintiffs and Subclass members placed in their representations. Consumers buy

diesel cars from the Defendants because they feel they are clean diesel cars. They

do not want to be spewing noxious gases into the environment. And yet, that is

precisely what the Affected Vehicles are doing.


- 609 -

1799. The Defendants’ false representations were material to consumers















of the Affected Vehicles with respect to emissions, starting with references to them

as reduced-emissions diesel cars and as compliant with all laws in each country,





- 610 -







pollute, comply with federal and state clean air law and emissions regulations,

meets and maintains the advertised MPG rate, and whether that manufacturer tells

the truth with respect to such compliance or non-compliance, are material concerns

to a consumer, including with respect to the emissions certifications testing their


members that they were purchasing or leasing fuel-efficient, reduced-emissions

diesel vehicles when, in fact, they were purchasing or leasing defective, high-

emission vehicles with unlawfully high emissions.








- 611 -

1802. The Defendants had still not made full and adequate disclosures, and






purchased purportedly reduced-emissions diesel cars manufactured by Defendants,

and/or would not have continued to drive their heavily polluting vehicles, or would

have taken other affirmative steps in light of the information concealed from them.

Plaintiffs’ and Subclass members’ actions were justified. The Defendants were in

exclusive control of the material facts, and such facts were not generally known to

the public, Plaintiffs, or Subclass members.










- 612 -





















- 613 -



OO. Claims Brought on Behalf of the Utah Subclass

COUNT I

VIOLATIONS OF THE UTAH CONSUMER SALES PRACTICES ACT

(UTAH CODE ANN. § 13-11-1 ET SEQ.)


forth herein.

1809. Plaintiffs bring this Count on behalf of the Utah Subclass.

1810. Each of the Defendants qualifies as a “supplier” under the Utah

Consumer Sales Practices Act (“Utah CSPA”), Utah Code Ann. § 13-11-3.

1811. Plaintiffs and the Subclass members are “persons” under Utah Code

Ann. § 13-11-3.

1812. Sales of the Affected Vehicles to Plaintiffs and the Subclass were

“consumer transactions” within the meaning of Utah Code Ann. § 13-11-3.

1813. The Utah CSPA makes unlawful any “deceptive act or practice by a

supplier in connection with a consumer transaction” under Utah Code Ann. § 13-

11-4. Specifically, “a supplier commits a deceptive act or practice if the supplier

knowingly or intentionally: (a) indicates that the subject of a consumer transaction

has sponsorship, approval, performance characteristics, accessories, uses, or

benefits, if it has not” or “(b) indicates that the subject of a consumer transaction is


- 614 -

of a particular standard, quality, grade, style, or model, if it is not.” Utah Code

Ann. § 13-11-4. “An unconscionable act or practice by a supplier in connection

with a consumer transaction” also violates the Utah CSPA. Utah Code Ann. § 13-

11-5.


















- 615 -








described above.








trade or commerce.




- 616 -



Subclass.


violated the Utah CSPA.





conditions;


and/or










- 617 -





from defects.









omissions.


well as to the general public. the Defendants’ unlawful acts and practices


1826. Pursuant to Utah Code Ann. § 13-11-4, Plaintiffs and the Subclass




- 618 -

amount of $2,000 for each Plaintiff and Utah Class member, reasonable attorneys’

fees, and any other just and proper relief available under the Utah CSPA.

COUNT II

BREACH OF CONTRACT

(BASED ON UTAH LAW)



1828. Plaintiffs bring this Count on behalf of the Utah Subclass members.














- 619 -














COUNT III


(BASED ON UTAH LAW)



1833. Plaintiffs bring this Count on behalf of the Utah Subclass.




- 620 -






















- 621 -









from defects.












- 622 -






members.















- 623 -






















- 624 -





















- 625 -






















- 626 -






















- 627 -



PP. Claims Brought on Behalf of the Vermont Subclass

COUNT I

VIOLATION OF VERMONT CONSUMER FRAUD ACT

(VT. STAT. ANN. TIT. 9, § 2451 ET SEQ.)



1853. This claim is brought on behalf of the Vermont Subclass.

1854. Each of the Defendants is a seller within the meaning of Vt. Stat. Ann.

tit. 9, § 2451(a)(c).

1855. The Vermont Consumer Fraud Act (“Vermont CFA”) makes unlawful

“[u]nfair methods of competition in commerce, and unfair or deceptive acts or

practices in commerce.” Vt. Stat. Ann. tit. 9, § 2453(a).









- 628 -

















described above.





- 629 -





trade or commerce.





Subclass.


violated the Vermont CFA.





conditions;


and/or


- 630 -













from defects.




and did in fact deceive reasonable consumers, including Plaintiffs, about the true

cleanliness and efficiency of the Adsorber Engine, the quality of the Defendants’

brands, the devaluing of environmental cleanliness and integrity at the Defendants’

companies, and the true value of the Affected Vehicles.


- 631 -



Vermont Subclass. The Defendants’ fraudulent use of the “defeat device” and

concealment of the true characteristics of the Clean Diesel engine system were

material to Plaintiffs and the Vermont Class. A vehicle made by a reputable

manufacturer of environmentally friendly vehicles is worth more than an otherwise

comparable vehicle made by a disreputable and dishonest manufacturer of

polluting vehicles that conceals the amount its vehicles pollute rather than make

environmentally friendly vehicles.

1868. Plaintiffs and the Vermont Subclass suffered ascertainable loss caused

by the Defendants’ misrepresentations and concealment of and failure to disclose

material information. Plaintiffs who purchased the Affected Vehicles either would

have paid less for their vehicles or would not have purchased or leased them at all.

1869. The Defendants had an ongoing duty to all their customers to refrain

from unfair and deceptive acts or practices under the Vermont CFA. All owners of

Affected Vehicles suffered ascertainable loss in the form of the diminished value

of their vehicles as a result of the Defendants’ deceptive and unfair acts and

practices that occurred in the course of the Defendants’ business.


- 632 -





Vermont CFA, Plaintiffs and the Vermont Subclass have suffered injury-in-fact


1448. Plaintiffs and the Vermont Subclass are entitled to recover

“appropriate equitable relief” and “the amount of [their] damages, or the

consideration or the value of the consideration given by [them], reasonable

attorney’s fees, and exemplary damages not exceeding three times the value of the

consideration given by [them]” pursuant to Vt. Stat. Ann. tit. 9, § 2461(b).

COUNT II


(BASED ON VERMONT LAW)



1872. Plaintiffs bring this Count on behalf of the Vermont Subclass.






- 633 -






















- 634 -







from defects.















- 635 -



members.



















- 636 -






















- 637 -






















- 638 -





















- 639 -




















- 640 -

COUNT III

BREACH OF CONTRACT

(BASED ON VERMONT LAW)


forth herein.

1892. This claim is brought on behalf of the Vermont Subclass.

















- 641 -











QQ. Claims Brought on Behalf of the Virginia Subclass

COUNT I

VIOLATIONS OF THE VIRGINIA CONSUMER PROTECTION ACT

(VA. CODE ANN. § 59.1-196 ET SEQ.)


forth herein.

1897. This claim is brought on behalf of the Virginia Subclass.

1898. Each Defendant is a “person” as defined by Va. Code Ann. § 59.1-

198. The transactions between Plaintiffs and the other Subclass members on the

one hand and Defendants on the other, leading to the purchase or lease of the

Affected Vehicles by Plaintiffs and the other Subclass members, are “consumer


- 642 -

transactions” as defined by Va. Code Ann. § 59.1-198, because the Affected

Vehicles were purchased or leased primarily for personal, family or household

purposes.

1899. The Virginia Consumer Protection Act (“Virginia CPA”) prohibits

“(5) misrepresenting that goods or services have certain quantities, characteristics,

ingredients, uses, or benefits; (6) misrepresenting that goods or services are of a

particular standard, quality, grade, style, or model; … (8) advertising goods or

services with intent not to sell them as advertised; … [and] (14) using any other

deception, fraud, false pretense, false promise, or misrepresentation in connection

with a consumer transaction[.]” Va. Code Ann. § 59.1-200(A).












- 643 -














described above.








- 644 -


trade or commerce.





Subclass.


violated the Virginia CPA.





conditions;


and/or






- 645 -









from defects.













- 646 -

1912. Pursuant to Va. Code Ann. § 59.1-204, Plaintiffs and the Subclass



amount of $500 for each Plaintiff and Subclass member. Because Defendants’

conduct was committed willfully and knowingly, Plaintiffs are entitled to recover,

for each Plaintiff and Subclass member, the greater of (a) three times actual

damages or (b) $1,000.

1913. Plaintiffs also seek punitive damages, and attorneys’ fees, and any

other just and proper relief available under General Business Law § 59.1-204 et

seq.

COUNT II

BREACH OF CONTRACT

(BASED ON VIRGINIA LAW)



1915. Plaintiffs bring this Count on behalf of Virginia Subclass members.







- 647 -






















- 648 -

COUNT III


(BASED ON VIIRGINIA LAW)



1920. Plaintiffs bring this Count on behalf of the Virginia Subclass.

















- 649 -
















from defects.






- 650 -












members.










- 651 -






















- 652 -






















- 653 -






















- 654 -






















- 655 -







RR. Claims Brought on Behalf of the Washington Subclass

COUNT I

VIOLATION OF THE WASHINGTON CONSUMER PROTECTION ACT

(WASH. REV. CODE ANN. § 19.86.010 ET SEQ.)



1940. Plaintiffs bring this Count on behalf of the Washington Subclass.

1941. Each Defendant, each Plaintiff, and each member of the Washington

Subclass is a “person” under Wash. Rev. Code Ann. § 19.86.010(1) (“Washington

CPA”).

1942. Defendants engaged in “trade” or “commerce” under Wash. Rev.

Code Ann. § 19.86.010(2).

1943. The Washington Consumer Protection Act (“Washington CPA”)

broadly prohibits “[u]nfair methods of competition and unfair or deceptive acts or


- 656 -

practices in the conduct of any trade or commerce.” Wash. Rev. Code. Wash.

Ann. § 19.96.010.








above. Accordingly, the Defendants engaged in unfair and deceptive business

practices prohibited by the Washington CPA. The Defendants’ conduct was unfair

because it (1) offends public policy as it has been established by statutes, the

common law, or otherwise; (2) is immoral, unethical, oppressive, or unscrupulous;

or (3) causes substantial injury to consumers. The Defendants’ conduct is

deceptive because it has the capacity or tendency to deceive.







- 657 -



















described above.


- 658 -








trade or commerce.





Subclass.


violated the Washington CPA.





conditions;


- 659 -


and/or













from defects.







- 660 -




omissions.




1957. The Defendants are liable to Plaintiffs and the Subclass for damages

in amounts to be proven at trial, including attorneys’ fees, costs, and treble

damages, as well as any other remedies the Court may deem appropriate under

Wash. Rev. Code. Ann. § 19.86.090.

COUNT II

BREACH OF CONTRACT

(BASED ON WASHINGTON LAW)



1959. Plaintiffs bring this Count on behalf of the Washington Subclass

members.





- 661 -






















- 662 -



COUNT III


(BASED ON WASHINGTON LAW)



1964. Plaintiffs bring this Count on behalf of the Washington Subclass.















- 663 -


















from defects.




- 664 -














members.








- 665 -






















- 666 -






















- 667 -






















- 668 -






















- 669 -









SS. Claims Brought on Behalf of the West Virginia Subclass

COUNT I

VIOLATIONS OF THE WEST VIRGINIA CONSUMER CREDIT

AND PROTECTION ACT

(W. VA. CODE § 46A-1-101 ET SEQ.)


forth herein.

1984. Plaintiff intends to assert a claim under the West Virginia Consumer

Credit and Protection Act (“West Virginia CCPA”) which prohibits “unfair or

deceptive acts or practices in the conduct of any trade or commerce ….” W. VA.

CODE § 46A-6-104. Plaintiff will make a demand in satisfaction of W. VA.

CODE § 46A-6-106(b), and may amend this Complaint to assert claims under the

CCPA once the required 20 days have elapsed. This paragraph is included for


- 670 -

purposes of notice only and is not intended to actually assert a claim under the

CCPA.

.

COUNT II

BREACH OF CONTRACT

(BASED ON WEST VIRGINIA LAW)



1986. Plaintiffs bring this Count on behalf of the West Virginia Subclass.














- 671 -












COUNT III


(BASED ON WEST VIRGINIA LAW)



1991. Plaintiffs bring this Count on behalf of the West Virginia Subclass.






- 672 -






















- 673 -







from defects.















- 674 -



members.



















- 675 -






















- 676 -






















- 677 -





















- 678 -




















- 679 -

TT. Claims Brought on Behalf of the Wisconsin Subclass

COUNT I

VIOLATIONS OF THE WISCONSIN

DECEPTIVE TRADE PRACTICES ACT

(WIS. STAT. § 110.18)



2011. Plaintiffs bring this claim on behalf of the Wisconsin Subclass.

2012. Each of the Defendants is a “person, firm, corporation or association”

within the meaning of Wis. Stat. § 100.18(1).

2013. Plaintiffs and Wisconsin Subclass members are members of “the

public” within the meaning of Wis. Stat. § 100.18(1). Plaintiffs and Wisconsin

Subclass members purchased or leased one or more Affected Vehicles.

2014. The Wisconsin Deceptive Trade Practices Act (“Wisconsin DTPA”)

prohibits a “representation or statement of fact which is untrue, deceptive or

misleading.” Wis. Stat. § 100.18(1). In the course of Defendants’ business, they

willfully failed to disclose and actively concealed that the NOx reduction system in

the Affected Vehicles turns off or is limited during normal driving conditions, that

the Affected Vehicles emitted far more pollutants than gasoline-powered vehicles,

that the Affected Vehicles emit far more pollution than a reasonable consumer

would expect in light of Defendants’ advertising campaign, and that the Affected


- 680 -


above. Accordingly, Defendants engaged in deceptive business practices

prohibited by the Wisconsin DTPA.


















- 681 -








described above.








trade or commerce.




- 682 -



Subclass.


violated the Wisconsin DTPA.





conditions;


and/or










- 683 -





from defects.









omissions.




2027. Plaintiffs and the Wisconsin Subclass are entitled to damages and

other relief provided for under Wis. Stat. § 100.18(11)(b)(2). Because the


- 684 -

Defendants’ conduct was committed knowingly and/or intentionally, Plaintiff` and

the Wisconsin Subclass are entitled to treble damages.

2028. Plaintiffs and the Wisconsin Subclass also seek court costs and

attorneys’ fees under Wis. Stat. § 110.18(11)(b)(2).

COUNT II

BREACH OF CONTRACT

(BASED ON WISCONSIN LAW)



2030. Plaintiffs bring this Count on behalf of the Wisconsin Subclass

members.












- 685 -














COUNT III


(BASED ON WISCONSIN LAW)



2035. Plaintiffs bring this Count on behalf of the Wisconsin Subclass.




- 686 -






















- 687 -









from defects.












- 688 -






members.















- 689 -






















- 690 -





















- 691 -






















- 692 -






















- 693 -



REQUEST FOR RELIEF VI.

WHEREFORE, Plaintiffs, individually and on behalf of members of the

Nationwide Class and State Subclasses, respectfully request that the Court enter

judgment in their favor and against the Defendants, as follows:

A. Certification of the proposed Nationwide Class and State Subclasses,

including appointment of Plaintiffs’ counsel as Class Counsel;

B. Restitution, including at the election of Class members, recovery of

the purchase price of their Affected Vehicles, or the overpayment or diminution in

value of their Affected Vehicles;

C. Damages, including punitive damages, costs, and disgorgement in an

amount to be determined at trial, except that monetary relief under certain

consumer protection statutes, as stated above, shall be limited prior to completion

of the applicable notice requirements;

D. An order requiring the Defendants to pay both pre- and post-judgment

interest on any amounts awarded;

E. An award of costs and attorneys’ fees; and

F. Such other or further relief as may be appropriate.


- 694 -

DEMAND FOR JURY TRIAL VII.

Plaintiffs hereby demand a jury trial for all claims so triable.

DATED: November 14, 2016 Respectfully submitted,

By /s/E. Powell Miller________

E. Powell Miller (P39487)

Sharon S. Almonrode (P33938)

The Miller Law Firm PC

950 W. University Dr., Ste. 300

Rochester, Michigan 48307

Telephone: (248) 841-2200

Facsimile: (248) 652-2852

[email protected]

[email protected]

Steve W. Berman

Jerrod C. Patterson

HAGENS BERMAN SOBOL SHAPIRO LLP

1918 Eighth Avenue, Suite 3300

Seattle, WA 98101

Telephone: (206) 623-7292

Facsimile: (206) 623-0594

Email: [email protected]

Email: [email protected]

Christopher A. Seeger (admission pending)

SEEGER WEISS LLP

77 Water Street, New York,

New York, NY 10005

Tel: (212) 584-0700

Fax: (212) 584-0799

[email protected]

James E. Cecchi (admission pending)

CARELLA, BYRNE, CECCHI,

OLSTEIN, BRODY & AGNELLO, P.C.

5 Becker Farm Road


- 695 -

Roseland, New Jersey 07068

Tel: (973) 994-1700

Fax: (973) 994-1744

[email protected]

Robert C. Hilliard (admission pending)

HILLIARD MUNOZ GONZALES LLP

719 S Shoreline Blvd., # 500

Corpus Christi, TX 78401

Tel: (361) 882-1612

[email protected]

Attorneys for Plaintiffs and the

Proposed Class


1

INDEX OF EXHIBITS

Exhibit 1- USA Today-Volkswagen emission scandal widens

Exhibit 2- Cummins Technology Partnerships

Exhibit 3- Cummins Inc.-Cummins Reveals Best-In Class 2007

Exhibit 4- EPA 2010 Exhaust Emissions Regulations

Exhibit 5- Dodge Ram Brochure

Exhibit 6-EPA.gov-What is Emissions Trading

Exhibit 7- Trucktrend.com-A Decade of Cummins, Duramax, and Power Stroke

Diesel Engines

Exhibit 8- Cumminsengines.com-Cummins History

Exhibit 9- DieselNet.com-Regulatory Authorities

Exhibit 10-U.S. Department of Justice Press Release (June 16, 1998)

Exhibit 11-jalopnik.com-How the EPA Won $ 1 Billion From Diesel Cheaters

Long Before VW

Exhibit 12-justice.gov-Cummins Inc. Agrees to Pay $2.1 Million Penalty

Exhibit 13- fortune.com-Cummins: An engine maker bets on clean air-and wins

Exhibit 14-Lobbying Report

Exhibit 15-prnnewswire.com-Dodgwe Introduces Cleaner, Quieter and More

Powerful 6.7-liter Cummins Turbo-Diesel Engine

Exhibit 16- Cummins 2007 Sustainability Report

Exhibit 17- Cummins 2009 Sustainability Report

Exhibit 18-Wikipedia-Six Sigma

Exhibit 19-Cummins 2010 Sustainability Report

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2

Exhibit 20-social.cummins.com-Employees Honored for Making Cummins

Stronger

Exhibit 21- social.cummins.com-Two Millionth Cummins Pickup Engine Rolls

Off Line for Chrysler

Exhibit 22-Cummins Inc.-Press Release (April 15, 2008)

Exhibit 23-Cummins Inc.-Press Release (February 3, 2010)

Exhibit 24- 2008 Dodge Ram Brochure

Exhibit 25- 2009 Dodge Ram Brochure

Exhibit 26-2010 Dodge Ram Brochure

Exhibit 27-2011 Dodge Ram Brochure

Exhibit 28- EPA’s Notice of Violation to Volkswagen (September 18, 2015)

Exhibit 29-CAFEE Final Report (May 15, 2014)

2:16-cv-14024-TGB-RSW Doc # 1-1 Filed 11/14/16 Pg 2 of 2 Pg ID 712